The Maryland constitution of 1864

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THE MARYLAND CONSTITUTION
OF 1864

SERIES XIX Nos. 8-9

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

HERBERT B. ADAMS, Editor

History is past Politics and Politics are present History. Freeman

THE MARYLAND CONSTITUTION

OF 1864

BY WILLIAM STARR MYERS, PH. D.

Master of History, Country School for Boys, Baltimore

BALTIMORE

THE JOHNS HOPKINS PRESS
AUGUST-SEPTEMBER, 1901

COPYWGHT 1901, BY

JOHNS HOPKINS PRESS

Q^dfttmote

THE FRIEDENWALD COMPANY
BALTIMORE, MD., U. S. A.

PREFACE

This study was undertaken at the suggestion of Dr.
Bernard C. Steiner, of the Johns Hopkins University, and
is an attempt to trace one of the most important movements
in Maryland history. Although obscured and complicated
by the momentous events which were then rending the life
of the nation to its very foundations, its most important
phase was the effort to bring about the total abolition of
slavery in the state. President Lincoln's Emancipation
Proclamation of September 22, 1862, did not apply to
Maryland, as this state was not in rebellion, hence the local
movement was necessary in order to carry out the policy of
the National Government, and the Constitution of 1864,
with its prohibitory clause in regard to slavery, was the
result.

The subject is divided as follows: Part I. treats of the
political movement leading to the call of the Constitutional
Convention; Part II. gives an account of the sittings of
that Convention and the formation of a new Constitution;
Part III. tells of the acceptance of the Constitution by the
state.

The Proceedings and Debates of the Convention, the
State Documents and Legislative Proceedings of the
period, and the contemporary newspapers have been my
chief sources, supplemented in part by personal conversa-
tion with some of those who took part in the movement.

W. S. M.

Baltimore, May, 1901.

THE MARYLAND CONSTITUTION OF 1864

I.

It is a well-known fact that the two powerful and op-
posing forces of " freedom " and " slavery " battled with
each other for years in the economic and political life of
our country, till they ended in the Civil War of 1861-5. In
fact, around these forces centred all the history of the
United States up to that time, for they were born of our
Constitution, were nursed into self-assertive strength under
its provisions, and grew as the nation expanded, step by
step, year by year, from one administration to another,
till finally they overthrew all other ties of political fealty,
religious association, and patriotic allegiance, and asserted
themselves in the great question of the hour. This ques-
tion was: Shall the nation be free in its domestic rela-
tions as in its government, or shall it countenance and pro-
tect negro slavery?

Although veiled under the immediate doctrine of
" State's Rights," this fundamental contention soon pushed
its way to the fore, and in a terrible struggle of brother
against brother, was settled forever on the basis of negro
emancipation and the integrity of the Union.

The state of Maryland, situated midway between the
North and the South, the two great sections of the country
that championed the respective sides of the question, united
within her borders both the slave system, dominant in
the southern counties, as well as the practically free labor
of the northern counties and the mountain districts. To
these must be added the city of Baltimore, a seething
cauldron of divided political sentiment, and which was often
opposed by the remainder of the Commonwealth in matters
of state polity. Hence Maryland naturally became the
scene of bitter strife, consequent upon and contempora-

8 Tfte Maryland Constitution of 1864. [354

neous with the larger struggle that was rending our nation
to its very foundations.

Proximity to the city of Washington caused a very close
surveillance of the state on the part of the Federal au-
thorities, leading at times to direct interference in state
and local affairs by them, as the loyalty of Maryland was
in many ways very necessary to the safety of the National
Government. One can well realize this by pausing to think
of the consequences to the Union of having its capital en-
tirely within the bounds of a hostile territory a thing
practically impossible, unless unbroken military success is
presupposed, and even then a matter of great difficulty.

On the part of Maryland, the very fact of being a slave
state naturally bound her more closely to the South,
although at the beginning of the secession agitation during
the latter part of Buchanan's administration probably the
larger part of the people were in favor of standing by the
Union. On the other hand, a majority were strongly op-
posed to coercing the South, and after the outbreak of
hostilities, this opposition to the war ended in quite a
change of sentiment in many cases, so that it is doubtful
if the state would have finally remained in the Union, had
it not been for the firm restraining hand of the Federal
military authorities. 1 After all, it is practically impossible
to reach absolute certainty in this matter, and it will always
remain a mooted point, and largely a subject for con-
jecture.

The half-hearted Union men, if we may call them such,
as well as those heartily sympathizing with the South, con-
sistently fought all the measures necessary for carrying the
war to a successful termination, such as drafting, negro
emancipation and enlistments, martial law, and military
supervision of elections and other distinctly state functions.

On November 6, 1861, the Union party succeeded in

1 The Southern sympathizers claimed this in 1864. See Debates
ii, 825 (references merely to " Debates " and " Proceedings " refer
to those of the " State Convention of 1864 ").

355] The Maryland Constitution of 1864. 9

electing Augustus W. Bradford governor by over 31,000
majority, 15,000 more votes than the highest candidate at
the presidential election of the preceding year. 2 A large
majority of the Legislature also was loyal.

By this election Maryland was definitely lost to the
cause of secession, and hereafter the main struggle was over
the support of the National Government in the war meas-
ures mentioned above. The most important of these,
which dealt with the original cause of the differences be-
tween the North and the South, was slavery, and around
the question of emancipation soon centred the political ac-
tivity of the next three years. President Lincoln precipi-
tated the struggle in the spring of 1862, when he declared
his policy of compensated emancipation, especially for
the border states that had remained in the Union, and ulti-
mately leading to national abolition of slavery. He first
suggested this to some of the leading politicians, and
afterwards officially recommended it to Congress, but de-
sired the action of the above states to be voluntary.*

Before going further in tracing this movement, we must
take a hasty look at the changed condition of slavery in
Maryland at this time. While the interest of the people
was directed towards the stirring national affairs of political
and military moment, a domestic revolution had taken
place, not so much as dreamed of a few years before. 4

" Scarcely a year had elapsed after the war commenced
before the institution of slavery in Maryland became utterly
demoralized. The master lost all control over his slave.
The relation between master and slave existed only as a
feature in the legislation of the past. There was no power
to compel obedience or submission on the part of the slave,

2 Scharf, " Hist, of Md.," iii, 460, states that many illegal votes
were cast by Union soldiers stationed in Maryland and other in-
terested persons.

8 Nicolay and Hay, " Life of Lincoln," viii, 450-1.

4 " American," Oct. 10, 1863 (Baltimore papers referred to, unless
otherwise stated).

10 The Maryland Constitution of 1864. [356

and there was no standard which could be appealed to as
fixing the value of the slave as property. Man-land was
neither a slave nor a free state." ''

Among the many reasons for this state of affairs may
be mentioned, first of all, the fact that the radical wing of
the Republican party, which now largely favored emanci-
pation, had almost complete control of the National Gov-
ernment, and practical control of the Maryland state gov-
ernment as well, through the presence of the armed mili-
tary and the provost-marshals. Also, by the state of semi-
anarchy which always accompanies a w r ar waged near by,
the social and industrial orders were almost paralyzed in
Maryland, and legal remedies were more slow and uncer-
tain. Again, the Federal forces regularly seized slaves,
either for enlistment or for bodily labor in connection with
the forts or supply departments, and they refused to return
them (or even runaway slaves), to their masters. These
facts are more than enough to explain the demoralized con-
dition of slavery.

Although useless for all practical purposes, this institu-
tion was by no means dead politically, as following events
will show. The people of Man-land were born and bred
during its life and strongest influence, so that it w r as hard
for many of them to realize the fact of its practical annihila-
tion. In addition, they desired, if slavery must go, to pro-
cure some return for their lost property.

In an aggregate population of 687,000 in 1860, there
were 83,942 free negroes and 87,189 slaves. The number
of slave-owners was estimated at about 16,000, though
many of these owned only one or two slaves.' A state
with so nearly a numerical equality between free negroes
and slaves, offered an excellent opportunity for pushing a
policy of emancipation, and this opportunity the emancipa-
tion advocates were not slow to seize.

'Inaugural address of Governor Swann. Jan. II, 1865.
e " Debates," i, 616.

357] The Maryland Constitution of 1864. 11

President Lincoln, on March 6, 1862, sent in his mes-
sage urging a policy of compensated emancipation, and
it was approved by resolution of Congress on April io. T
He had an interview on this subject with the delegations
from the border states on March 10, 1862, at which two
of the Maryland representatives were present Cornelius
L. L. Leary and John W. Crisfield but they gave him
little encouragement. A second interview, four months
later, was no more successful, the border states practically
declining to entertain his proposals.

" Little could be expected from the Maryland Union
representatives at that time in behalf of the President's
policy. They had been elected on June 13, 1861, by the
party organization which still reflected the conservatism
existing before the war, and whose single bond of party
affiliation was opposition to secession and disunion a
condition of political sentiment at that time common to all
the border slave states and which was formulated by the
Crittenden resolution." '

The bill for the abolition of slavery in the District of
Columbia which finally, after much delay, passed Con-
gress in the month of April, 1862, served to show the peo-
ple of Maryland that the cause of emancipation was ad-
vancing, and that they must at once prepare to deal with it.
The Legislature of 1862, still showing the old suspicious
attitude of the slave-owners, who were always on the look-
out for anti-slavery measures, had already passed resolu-
tions of loyalty to the Union, but had also protested against
any agitation of the subject of emancipation. Hon.
Francis Thomas, of Maryland, on January 12, 1863," intro-
duced in Congress a resolution looking toward compen-
sated emancipation in Maryland, and a few days later a

7 House Journal, 37th Congress, 2d Session, p. 528. Senate
Journal, p. 382.

8 Nicolay and Hay, " Life of Lincoln " (from which we have
largely drawn for this period), viii, 452-4.

* House Journal, 37th Congress, 3rd Session, p. 186.

13 The Maryland Constitution of 1864. [358

bill was actually introduced by Mr. Bingham, of Ohio, for
this purpose, which, after being- referred to a committee,
was reported on February 25 10 and appropriated ten mil-
lion dollars to carry the plan into effect. Mr. Crisfield
objected, and for this and minor reasons the bill finally
passed out of sight and was not brought forward again. 11

But the question was not thus summarily hushed in
Maryland. Emancipation now came to the fore, and re-
mained there till the battle was fought to a finish.

" In this emergency the duty of prompt action became
imperative, and even the advocates of gradual emancipa-
tion upon the President's recommendation found them-
selves powerless in the midst of the claims of a higher
state necessity, which demanded the prompt abatement of
the evil. . . . While compensation was beyond the ability
of the state, the duty was not the less incumbent to abate
a nuisance which obstructed all the avenues of agricul-
tural, manufacturing and commercial development." '

The more radical wing of the Union party u took up the
question, and the fall election of 1863 was fought on this
line. The American, in an editorial in the issue of Oc-
tober 7, 1863, said: "As we predicted at the outset, the
question has forced its way, has compelled attention, until
at last it is the one thing dwelt upon by the first intellects
in the state, by all who are candidates for place and posi-
tion at the hands of the people."

As slavery was recognized and protected by the exist-
ing state Constitution (adopted in 1851) which said: "The
Legislature shall not pass any law abolishing the relation
of master or slave, as it now exists in this state " (Art. Ill,
Sec. 43), a constitutional amendment was necessary to
emancipation.

10 House Journal, 37th Congress, 3rd Session, 485.

11 Nicolay and Hay, viii, pp. 456-7.

"Gov. Swann's inaugural address, Jan. n. 1865.
u Not known in Maryland as the Republican party during the
war.

359] The Maryland Constitution of 1864. 13

But the Constitution had been formed and passed in an
irregular and unsatisfactory manner, and was unpopular
with a large number of the people, who demanded z. more
just and more modern instrument. In fact, there had
already been several movements for a Constitutional Con-
vention, notably in 1858, when the Legislature ordered a
vote on the question of a new Constitution, and made
provision for a convention in case the people were favor-
able, but there was a majority of over 8000 against it. 14
Later, the Legislature of 1862 made a strong move in this
direction. During the special session in the fall of 1861
permission was, on December n, granted the Senate
" Committee on Judicial Procedure " to report a bill for
taking the sense of the people on calling a Constitutional
Convention. The bill was reported during the regular ses-
sion on January 20, 1862, and passed its third reading on
February 14. The House of Delegates amended the
Senate bill, and passed it during the night of the last day
of the session (March 10), seemingly returning it too late for
any further action by the Senate, as we have no subsequent
record of the bill."

The radical wing of the Union party in the state had
been sharp enough to see the advantage of combining the
emancipation sentiment with this dissatisfaction with the
State Constitution, and instead of favoring an amendment,
declared for a new Constitution in a convention in Balti-
more on May 28, 1862, composed of delegates from Union
ward-meetings. 10 They carried this move further in the
summer of 1863, when they formed a new political party,
known as the " Unconditional Union," which embodied the
idea among its principles.

14 Governor's Message, House Documents, 1864. Schmeckebier,
" Know Nothing Party in Maryland," 94-6. (J. H. U. Studies,
series xvii, 238-40.)

15 Senate Journal (1861-2), 20, 127, 250. House Journal, 474,
894-7, Deb. i, 581.

19 Nicolay and Hay, viii, 455.

14 The Maryland Constitution of 1864. [360

The fall campaign of 1863 was the first general state
election since 1861, and hence the first opportunity for
radicalism to try its strength since the general Union
Party victory when Governor Bradford was elected. A
Comptroller of the Treasury, a Commissioner of the Land
Office, five members of Congress, a State Legislature and
local officials were to be elected. A mass-meeting was
held under the auspices of the Union League at the Mary-
land Institute, Baltimore, on April 20, 1863, which de-
clared for emancipation -throughout those parts of the
country in rebellion, according to President Lincoln's
proclamation of September 22, 1862, and for compensated
emancipation in Maryland, according to the President's
recommendation of March 6, 1862. Governor Bradford
presided at this meeting and also addressed it, as did Hon.
Montgomery Blair, ex-Governor Hicks, and other prom-
inent Union men.

The State Central Committee, appointed by the Union
State Convention of May 23, 1861, still controlled the
party machinery, and was far too conservative to carry out
the radical program. At this juncture the Union Leagues
of the state stepped in, and in a convention held in Balti-
more on June 16, 1863, over which Henry Stockbridge
presided, boldly took their stand as " supporting the whole
policy of the Government in suppressing the Rebellion."
This of course included emancipation. The convention
adjourned over till June 23, for which date the State Cen-
tral Committee had called the regular State Convention of
the Union party.

Both conventions met in Baltimore on the same day
and in the same building the " Temperance Temple " on
North Gay Street.

The Central Committee Convention, refusing the Union
League overtures looking toward a subsequent " fusion "
convention, nominated S. S. Maffitt, of Cecil County, for
Comptroller, and William L. W. Seabrook, of Frederick
County, for Commissioner of the Land Office. The

361] The Maryland Constitution of 1864. 15

Union League Convention nominated Henry H. Golds-
borough, of Talbot County, for Comptroller, and also nom-
inated Mr. Seabrook for Commissioner of the Land Office.

The division was complete, and these two factions, both
loyal to the Union, had now for the present become separate
parties, and could only fight out their principles at the
polls. The conservatives, hereafter known as " Conditional
Union," while protesting their loyalty and desire that the
war be carried to a successful close, opposed President
Lincoln on account of his " unconstitutional acts " 1T in his
aggressive war measures, and also opposed the radical pro-
gram of emancipation and the agitation of the slavery ques-
tion, preferring a policy of compromise and delay. On the
other hand, they announced themselves as favoring the
submission to the people of the question as to the desira-
bility of calling a constitutional convention. The State
Central Committee on September n issued an address to
the people of the state embodying these principles. It was
signed by Thomas Swann (chairman), John P. Kennedy,
Columbus O'Donnell, John B. Seidenstricker, Thomas C.
James, George Merryman, Augustus M. Price, William H.
Stewart, and John V. L. Findlay.

The radicals, hereafter known as " Unconditional
Union " men, came out for an aggressive policy, and forced
their candidates to the front as standing on an uncompro-
mising platform advocating a constitutional convention,
the extinction of slavery, and complete and absolute sup-
port of the National administration. To carry this out
it was absolutely necessary that they should secure a ma-
jority of the Legislature, so that they could push through
a bill for submitting to the people a call for the convention.
Their address was issued on September 16, and was signed
by William B. Hill, Henry W. Hoffman, Horace Abbott,
James E. Dwindle, William H. Shipley, S. F. Streeter,
John A. Needles, Robert Tyson, Milton Whitney and Wil-

" Frederick " Examiner/' November 4, 1863.

1G The Maryland Constitution of 1864. [362

Ham H. Baltzell. The Unconditional Union State Cen-
tral Committee, authorized by the Union League Conven-
tion of June 23, organized on September 29 and issued a
second address urging upon the people the principles ad-
vocated in that of September 15."

A vigorous campaign was organized by both parties,
and active work immediately began.

The Democratic party was almost dead and practically
without organization, and although candidates were nom-
inated in the lower counties, and in the First and Fifth
Congressional Districts, it abandoned the field in Balti-
more and the northern and western counties to the two
Union parties.

The campaign was most actively carried on throughout
the state, the candidates and party leaders making numer-
ous speeches, and usually urging that the result of the elec-
tion would show the sentiment of the state on the dominant
subjects of emancipation and a new Constitution. The
newspapers supporting the Unconditional Union candi-
dates also adopted the same tone, while those supporting
the opposite side were, as a rule, very guarded in their
statements, often entirely omitting all controversy, as they
evidently feared repression by the military authorities.
The most potent organ on the radical side was the Balti-
more American, which printed a series of strong anti-
slavery editorials, 19 and on October 12, 1863, stated its posi-
tion by saying: " The American is not the organ of any
party does not desire to be the organ of any party and
never has had any aspirations for party leadership. . . .
Our idea is to get rid of Slavery in the state of Maryland
at the earliest practicable moment that such a result can be
obtained." On November 2 it further urged the people
to carry the state for emancipation as the " debt of gratitude
which Maryland owes the [National] Government."

Nelson. " History of Baltimore," 155.
See issues of October 7, 10, 12, 20, 21, 29.

363] The Maryland Constitution of 1864. 17

On the evening of October 28 the Unconditional Union-
ists closed the campaign with a large and enthusiastic mass-
meeting in Monument Square, the largest held in Baltimore
for years. John Lee Chapman, Mayor of Baltimore, pre-
sided, and addresses were made by Henry Winter Davis,
Salmon P. Chase, General James A. Garfield, Brigadier-
General E. B. Tyler, and others of local or national reputa-
tion. Strong resolutions were passed favoring the prose-
cution of the war, " supporting the whole policy of the
[National] administration," and also saying " we are in
favor of emancipation in Maryland by a Constitutional
Convention," and that " the convention ought to meet
and conclude its labors that the Constitution may be rati-
fied at least by the next Presidential election." An addi-
tional clause declared that " traitors who do not acknowl-
edge the government whose authority protects the ballot-
box have no right to meddle with the elections." This
was perhaps intended as a judicious hint of what followed
during the next few days.

In spite of the great weight and importance of the ques-
tions involved, it has been stated by those in a position to
know, that there was much less strife and animosity of
party feeling than might have been expected, which can be
explained by the fact that the larger part of the contestants
were united in their loyalty to the Union. In addition,
affairs were further complicated and party lines practically
broken by a dissatisfied independent movement in Balti-
more City, which nominated several candidates of its own
for local offices and the Legislature. This did not obscure
the dominant questions, however, which were to be de-
decided on the election of a Comptroller.

Suddenly a different phase was put on the entire situation
by the interference of an exterior force the military
acting to some extent at least on the authority of the Na-
tional Government.

On October 26, Thomas Swann, chairman of the (Con-
ditional) Union State Central Committee, had sent the fol-
lowing letter to President Lincoln:
25

18 The Maryland Constitution of 1864. [364

OFFICE OF THE UNION STATE CENTRAL COMMITTEE,

BALTIMORE, October 26, 1863.
To THE PRESIDENT.

Sir: A suspicion having taken possession of the minds of many
loyal Union voters of the state of Maryland, that the election
about to take place on the 4th of November, will be attended with
undue interference on the part of persons claiming to represent
the wishes of the Government, I am induced, by what I know to
be the desire of a large number of our people, and in furtherance
of applications daily made to me, to ask most respectfully, that you
would place me, as Chairman of the Union State Central Com-
mittee, in possession of your views upon this subject, in order that
they may be communicated to loyal voters throughout this state.

I will beg you to believe, Mr. President, that it is with no doubt
or distrust on my part, as to what will be your response to this
letter, that I ask this favor at your hands; but simply to satisfy
a large class of persons who believe that an expression of opinion
on your part, would not be without its benefit to the people of the
state, in promoting what we all desire, a fair expression of the
public voice.

I am, with great respect, your obedient servant,

THOMAS SWANN,
Chairman of the Union State Central Committee.

The President replied on the next day as follows:

EXECUTIVE MANSION, WASHINGTON, D. C,

October 27, 1863.
HON. THOMAS SWANN.

Dear Sir: Your letter, a copy of which is on the other half of
this sheet, is received. I trust there is no just ground for the
suspicion you mention, and I am somewhat mortified that there
could be a doubt of my views upon this point of your inquiry.
I wish all loyal, qualified voters in Maryland and elsewhere, to
have the undisturbed privilege of voting at elections; and neither
my authority nor my name can be properly used to the contrary.

Your obedient servant,

A. LINCOLN.

Major-General Robert C. Schenck had been placed in
command of the Middle Department, Eighth Army Corps,
on December 17, 1862, with headquarters in Baltimore,
and had been most active in his support of the National
Government, as well as in using severe and stringent
means to suppress all traces of disloyalty. This, of course,

365] The Maryland Constitution of 1864. 19

had aroused bitter opposition in the Southern sympathizers
and also the more conservative Union people of the state,
who were stated above as opposing the policy of the ad-
ministration. On the other hand, the outspoken Unionists
had, in many cases, enthusiastically supported General
Schenck. A good instance of this is found in the fact that,
when in July, 1863, he levied damages on known Southern
sympathizers in Harford county to reimburse their Union
neighbors for wanton destruction of their property by un-
known persons, 20 the Second Branch of the City Council
on August 10 passed unanimous resolutions thanking him
for this severe measure, and endorsing his administration. 11
Now, on October 27, 1863, General Schenck issued his
famous " General Order No. 53," in which he practically
took military control of the ballot-box in the coming elec-
tion. After stating that " It is known that there are many
evil-disposed persons now at large in the state of Maryland
who have been engaged in rebellion against the lawful
Government, or have given aid and comfort or encourage-
ment to others so engaged, or who do not recognize their
allegiance to the United States, and who may avail them-
selves of the indulgence of the authority which tolerates
their presence to embarrass the approaching election, or
through it to foist enemies of the United States into power,"
it was ordered, first, that provost-marshals and other mili-
tary officers " arrest all such persons found at, or hanging
about, or approaching any poll or place of election on No-
vember 4, 1863;" second, that these officers should require
of voters who were challenged on the ground of disloyalty
the following oath : " I do solemnly swear that I will sup-
port, protect and defend the Constitution and Government
of the United States against all enemies, whether domestic
or foreign; that I hereby pledge my allegiance, faith and
loyalty to the same, any ordinance, resolution, or law of
any State Convention or State Legislature to the contrary

20 " Sun," July 30, August 8. a " Sun," August n.

20 The Maryland Constitution of 1864. [366

notwithstanding; that I will at all times yield a hearty and
willing obedience to the said Constitution and Government,
and will not, either directly or indirectly, do any act in
hostility to the same, either by taking up arms against
them, or aiding, abetting, or countenancing those in arms
against them; that, without permission from the lawful au-
thority, I will have no communication, direct or indirect,
with the states in insurrection against the United States,
or with either of them, or with any person or persons within
said insurrectionary states; and that I will in all things
deport myself as a good and loyal citizen of the United
States. This I do in good faith, with full determination,
pledge, and purpose to keep this, my sworn obligation, and
without any mental reservation or evasion whatsoever."
Thirdly, it was ordered that judges of election refusing to
carry out this order were to be reported to headquarters.

As General Schenck and his officers had openly advo-
cated the election of the Unconditional Union ticket, this
order was, aside from all expediency, most unfair to the
loyal citizens in the Conditional Union and Demo-
cratic parties. It was naturally greeted with a storm of
protests by them, and execrated from one end of the state
to the other. The radical Union men, aside from political
influences, generally endorsed it, urging that the import-
ance of the full support of the Union by Maryland was
far more important than any matters of local liberty and
freedom.

Governor Bradford, a man of undoubted loyalty, who
had courageously upheld the Union cause without com-
promise, and was in personal and friendly communication
with the military authorities, had received no intimation
in regard to the order.* 1 This was rather bad treatment,
for the chief magistrate of the state certainly deserved at
least the courtesy of a proper notice that the state laws
were to be superseded by military direction, especially since

11 Governor's Message, Senate and House Documents, 1864.

367] The Maryland Constitution of 1864. 21

he had openly espoused the cause of a new Constitution
and emancipation early in the fall campaign. Entirely in
the dark as to the course of events, 23 Governor Bradford
unknowingly followed the example of Thomas Swann, and
on October 31 wrote President Lincoln, stating that rumors
were current to the effect that the military forces were to
be present at the polls, and protesting against the same,
also saying: " As there is no reason, in my opinion, to
apprehend any riotous or violent proceedings at this elec-
tion, the inference is unavoidable that these detachments,
if sent, are expected to exert some control or influence in
that election." The letter protested against any " restric-
tions or qualifications on the right of suffrage," and added
that, judging from the President's previous course, he
thought any orders issued must be without his knowledge.
On November 2 Mr. Lincoln wrote in answer to this
letter, that he had conferred with General Schenck, who
had assured him that it was almost certain that violence
would be used at some of the voting places on election
day unless prevented by his provost guards. Further, he
justified his position with reference to his policy in the past
on the ground that the laws of Maryland required no test
of loyalty, and added that General Schenck's order " as-
sumes the right of voting to all loyal men, and whether a
man is loyal, allows that man to fix by his own oath. . . .
I revoke the first of the three propositions in General
Schenck's General Order No. 53," not that it is wrong in
principle, but because the military being, of necessity, ex-
clusive judges as to who shall be arrested, the provision is
liable to abuse. For the revoked part I substitute the
following: That all provost marshals and other military
officers do prevent all disturbance and violence at or about
the polls, whether offered by such persons as above de-
scribed, or by any other person or persons whatsoever.

28 It appears that General Schenck's order was not at once gen-
erally published. 24 See page 20.

22 The Maryland Constitution of 1864. [368

The other two propositions of the order I allow to stand.
General Schenck is fully determined, and has my strict
orders besides, that all loyal men may vote, and vote for
whom they please."

Thus rebuffed, and recognizing the futility of any further
attempt to persuade the national and military authorities
to recede from their position, Governor Bradford imme-
diately issued (November 2) a lengthy proclamation " To the
Citizens of the State, and More Especially the Judges of
Election,!' a large part of which had been prepared before-
hand. In this document he protested strongly against the
military order and its provisions as most obnoxious and
entirely without justification, " more especially offensive and
dangerous in view of the known fact that two at least of
the five provost-marshals of the state are themselves candi-
dates for important offices, and sundry of their deputies
for others." The attention of the Judges of Election was
called to the fact that "they are on the day of election
clothed with all the authority of conservators of the peace,
and may summon to their aid any of the executive officers
of the county, and the whole power of the county itself, to
preserve order at the polls, and secure the constitutional
rights of voters." They were also reminded of their oath
to observe the laws of the state, that the elections be so
conducted as to permit the qualified voters to fully cast
their ballots, and that there was absolute legal prohibition
of military at or near the polls. The original proclamation
closed with the two following paragraphs:

" Whatsoever power the state possesses, shall be exerted
to protect them * for anything done in the proper execu-
tion of its laws.

" Since writing the above I have seen a copy of the
President's letter to the chairman of the Union State Cen-
tral Committee, bearing the same date with the order, and
evidently showing that the order was unknown to him,

n i. e. Judges of election.

369] The Maryland Constitution of 1864. 23

that it would not have been approved by him if he had
known it [beforehand?] and that it is, therefore, all the
more reprehensible."

A postscript was added containing the modification by
the President of General Order No. 53, as has been already
stated.

Military orders were immediately sent to the Eastern
Shore, against which it was claimed the General Order
had been especially directed (as martial law had never been
declared in this part of the state) ordering that the circula-
tion of the Proclamation be suppressed. An embargo was
laid on all steamers trading with that part of the state, and the
newspapers were forbidden to publish it. 20 However, Gover-
nor Bradford issued it in pamphlet form on the same day, 21
and it was finally permitted to appear in the Baltimore papers
on the morning of the election (November 4). This action
on the part of the military authorities is explained by Gen-
eral Schenck in a reply published by him on November 3,
in which he stated that he desired that there should go out
with the Governor's proclamation the letter from President
Lincoln to Governor Bradford on the subject of the action
of the military. He added that the simple purpose of the
order was " to prevent traitorous persons from controlling
in any degree by their votes, or taking part in the coming
election." Further, in order to secure peace and good
order at the polls, the officers entrusted with this duty were
in every case furnished with written or printed instructions
containing the following: "The officers and men are cau-
tioned not to commit or permit any unlawful violence.
They must not enter into political discussions, and are to
remember that while protecting the polls from rebel sym-
pathizers, they are conservators of the peace, and are there
to support the judges of election."

This public controversy ended here, but the results of

28 Governor's Message, Senate and House Documents, 1864.
" " Sun," November 4.

24 The Maryland Constitution of 1864. [370

conflicting authority and such an uncertain and complicated
state of affairs were as might easily have been foreseen.

The election took place, as stated above, on Wednesday,
November 4, 1863, and resulted in an overwhelming victory
for the Union ticket.

Goldsborough, for Comptroller, received 36,360 votes,
and Maffitt, 15,984, an Unconditional Union majority of
nearly 20,000. In Baltimore City, the vote was 10,545 for
Goldsborough, and 367 for Maffitt. A majority of the
state Legislature also was in favor of the Constitutionl
Convention and emancipation. John A. J. Creswell, Ed-
win H. Webster, Henry Winter Davis, and Francis
Thomas, the Unconditional Union candidates in the first
four districts respectively, were elected to Congress, Web-
ster and Davis w r ith practically no opposition, but the Fifth
District went Democratic, Benjamin G. Harris being suc-
cessful against his Conditional and Unconditional Union
opponents. Goldsborough's majority was about ten thou-
sand less than that of Governor Bradford in 1861, but the
Democratic votes cannot be compared, as that party had
no candidates for state officers in 1863. The entire Union
vote (of both parties) was practically the same in 1863 as in
1861, although the total vote was only about half that of
the Presidential election of 1860. Part of this decrease
was of course caused by lack of Democratic nominations
and also the numbers of secession sympathizers who had
gone South to enter the Confederate service; but fear of
the military at the polls, or the intimidation practiced by it
(of which there is absolute proof) were the greatest causes,
the number not voting at this election for these latter rea-
sons being estimated at about one-third of the total vote
in many districts of the state. 28 Allowing absolute fairness
at the polls, and even this entire amount throughout the
state as going solidly for Maffitt, Goldsborough would still
likely have won by a good round majority, so that the mili-

28 See evidence in contested election cases, House Documents,
1864; also contemporary newspapers.

371] The Maryland Constitution of 1864. 25

tary force used did not materially affect the final result as
much as might have been expected, except in the First
Congressional District (Eastern Shore), where it is perhaps
doubtful if Mr. Creswell could have defeated Mr. J. W.
Crisfield, his opponent. The complexion of the Legisla-
ture under these different conditions is a mere matter of
guess work, for although it is nearly certain that the House
of Delegates would have still been favorable to the call of
a convention, yet the Senate remains an entirely uncertain
quantity. It is hardly necessary to state that the above
speculations refer only to the action in this election of the
nominally loyal voters, large numbers of whom were op-
posed to the Unconditional Union platform. As said at the
beginning, it is impossible accurately to estimate the sen-
timent at this time of the total population of the state.

In Baltimore City, the day of the election was very quiet.
The saloons were all closed, and the military at the polls,
under the immediate supervision of General E. B. Tyler,
is said to have neither intimidated nor attempted to ob-
struct those who offered to vote." The American of Novem-
ber 5 says: " Tickets of all kinds were in abundance at the
polls, and all loyal men voted their sentiments fredy, so far
as the choice of candidates was concerned. . . . Mr.
Maffitt, the representative of the slave-holding interest, was
scarcely regarded as a candidate in the contest." The city
police, as well as the soldiers on duty at the polls, were
under strict orders to refrain from electioneering, and to
preserve the peace in every way.

As stated above," the main force of General Schenck's
order seemed to be directed against the Eastern Shore. A
force of infantry or cavalry was sent to each of the eight
counties on that side of the bay, and detachments under
command of subaltern officers were stationed at the various
polls. 81 The following proclamation'" was issued by Lieu-

20 See daily papers. M Page 28.

31 Report Senate Committee on Elections, Doc. " D ", 1864.
3i " Documents Accompanying Governor's Message," House and
Senate Doc,, 1864.

26 The Maryland Constitution of 1864. [372

tenant-Colonel Tevis, commanding the 3rd Maryland
Cavalry, and circulated in Kent and Queen Anne's
counties:

HEADQUARTERS 3RD MARYLAND CAVALRY,

CHESTER-TOWN, November 2, 1863.

Whereas,, the President of the United States, in reply to a letter
addressed to him by Hon. Thomas Swann, of Baltimore City,
has stated that all loyal qualified voters should have a right to
vote, it therefore becomes every truly loyal citizen to avail himself
of the present opportunity offered to place himself honorably upon
the record or poll books at the approaching election, by giving a
full and ardent support to the whole Government ticket, upon the
platform adopted by the Union League Convention. None other
is recognized by the Federal authorities as loyal or worthy of the
support of any one who desires the peace and restoration of this
Union.

[Signed] CHARLES CARROLL TEVIS.

Lt.-Colonel Commanding.

Colonel Tevis was afterwards put under arrest by order
of General Schenck, on the charge of acting in excess of
orders, but was soon released, presumably without trial. 83

This so-called " Government Ticket " was in several, if
not all, of the counties in the First Congressional District,
printed on yellow paper, and in some instances known
Southern sympathizers were allowed to vote if they voted
this ticket, while known Unionists were excluded for refus-
ing to do so." There seems to have been no regularity of
procedure by the military, in some districts only those
tickets being thrown out which contained the name of Mr.
Crisfield for Congress, while in other places the procedure
was changed to support certain candidates for local offices.
For instance, in several districts of Somerset County, the
provost-marshal in charge, who was a candidate on the rad-
ical ticket for sheriff of the county, announced that no one
who would vote for him should be molested. The Demo-
crats shrewdly promised to put the man on their ticket,

" American," November 6 and 10.
"Senate and House Documents, 1864.

373] The Maryland Constitution of 1864. 27

and were allowed to vote without any difficulty, but
when the votes were counted it was found that this prac-
tical politician was sadly tricked, as nearly all the Demo-
cratic ballots showed no trace of his name. At Princess
Anne, Somerset County, the judges of election were ar-
rested, and the polls closed when only one citizen had
voted. General Lockwood soon after released the pris-
oners, but the citizens of the whole district were deprived of
voting. Several Union candidates in Kent County were
arrested by order of Captain John Frazier, Jr., himself a
candidate for a county office. They were carried to Balti-
more, but were immediately released by Colonel Donn
Piatt, General Schenck's chief-of-staff, who not only
showed surprise, but disavowed responsibility for the ac-
tion. Captain Frazier, as in the case of Colonel Tevis,
was later arrested for this by General Schenck, but we
could find no record of the final outcome of the matter,
as in all probability it also was soon passed over.

Numerous other instances might be mentioned, as they
were well brought out in contested election cases," but
perhaps enough has been given to show the general char-
acter of the outrages. There were several isolated cases
in other parts of the state, as in Frederick and Prince
George's ** counties, but nothing on so large a scale and
with such bold effrontery as in the First Congressional
District.

As a result of the conflict of authority between Gover-
nor Bradford and General Schenck, there was no regu-
larity in the requirement of the prescribed oath. In some
parts of the state every voter was required to take it, and
in others it was observed very little, if at all. In a num-
ber of places on the Eastern Shore those voting the " yel-
low " ticket were not even challenged, while the remainder
were subjected to the oath. It should be noted that there

85 See Senate and House Documents, 1864.

86 Debates, iii, 1735-6.

28 The Maryland Constitution of 1864. [374

is no record of any violence or breach of the peace on the
part of the citizens of the state. This was no doubt partly
the result of intimidation, but also showed the admirable
power of self-restraint and the law-abiding character of the
people. Although, as stated above, the general result
throughout the state was not materially affected by this
use of armed force, yet the great question is as to who
was originally responsible for the move, and to what extent
it was justified. After a careful weighing of the evidence,
our opinion is that President Lincoln and General Schenck
used the military merely to keep disloyal citizens from
voting, a proceeding which may partly be justified as a
legitimate political move to strengthen the hands of the
government in time of war. The policy of the administra-
tion in regard to the other border states tends to confirm
this view. 87

The Baltimore American repeated the strong argument
that had been urged by President Lincoln in support of
this measure, by saying in an editorial on November 23,
1863: "The very fact that the laws of the state provided
no remedy for its protection against the arts of treason
as lately displayed at the polls, constituted an imperative
and all-sufficient reason why the general government
should provide some remedy for so unexpected and grave
a disability."

The great mistake, and the one for which General
Schenck deserves severe censure, if not positive condemna-
tion, is found in the fact that he not only openly espoused
the cause of the Unconditional Union party, but actually
made political speeches at various meetings in different
parts of the state, and urged the people to vote for Golds-
borough and the other candidates on that ticket. He also
allowed his officers to do the same.* 8 It would be hard to

87 Nicolay and Hay, " Life of Lincoln," viii, 420, 427-8, 432-3,
44i, etc.

88 See "Sun," Aug. 17, Oct. 29; "American," Oct. 9, 15, 16, 19,
23, 29.

375] The Maryland Constitution of 1864. 29

justify this on the ground of zeal for a good cause. No
wonder "Colonel Tevis spoke of the Unconditional Union
as the " Government " ticket in his very original proclama-
tion at Chestertown.

On the other hand, it must be said in General Schenck's
defense, that he was hardly in any direct manner respon-
sible for the outrages on the Eastern Shore, although he
himself by his own actions practically laid the way open
for the frauds of the unscrupulous local politicians and their
supporters among the military. These in all probability
formed a part of that band of " loyal citizens " who urged
upon him the necessity of the military possession of the
polls, as he stated in his proclamation of November 3,
already mentioned. 88

It is interesting to note that precisely the same order
as " Number 53 " was issued by General Schenck to govern
the election held in Delaware * on November 19, 1863.
Far from protesting against this action, the Governor of
the state officially endorsed it as follows:* 1

STATE OF DELAWARE, EXECUTIVE DEPARTMENT,

DOVER, November 13, 1863.

All civil officers and good citizens of this State are enjoined to
obey the above military order, issued by the Commanding General
of the Middle Department, and to give all needful aid for the
proper enforcement of the same.

WILLIAM CANNON.
Governor of Delaware.

An attempt was made to induce Governor Bradford to
refuse to give certificates of election in view of the un-
doubted irregularities at the polls, but after seeking the
advice of Hon. Reverdy Johnson the Governor declined
to accede to this, alleging lack of power, and that his duties
were merely ministerial in cases of this kind.

89 Issued by Gen. Schenck in answer to the Governor's proclama-
tion (see page 23). Further particulars on this subject in Gover-
nor's message, 1864.

40 Also in the jurisdiction of the Middle Department.

41 " American," Nov. 17, 1863.

30 The Maryland Constitution of 1864. [376

The Legislature met at Annapolis on January 6, 1864,
and soon after organized. John S. Sellman, of Anne
Arundel was elected President of the Senate, and Thomas
H. Kemp, of Caroline, Speaker of the House of Delegates.
Governor Bradford's message was a long and able docu-
ment. It contained, in addition to the usual discussion of
the financial and other economic affairs of the state, an
account of the controversy and difficulties at the previous
election, with some condemnation of the military author-
ities. Some suitable action on the part of the Legislature
was suggested, so as to remedy military interference and
prevent the use of marked ballots. The Governor also
urged that a Convention Bill be speedily passed, and that
a state system of education and numerous other important
subjects should be carefully considered.

In the House of Delegates, Mr. Stockbridge, of Balti-
more City, on January 8 offered an order that so much
of the Governor's message as related to a Constitutional
Convention be referred to a select committee of five mem-
bers, to be appointed by the Speaker, with authority to
report by bill or otherwise. This was adopted, and on the
1 2th the following committee was appointed: Messrs.
Stockbridge (chairman) and Jones, of Cecil; Trail, of Fred-
erick; Tyson, of Howard, and Frazier of Dorchester.

This committee reported a bill on January 15, which pro-
vided for a vote of the citizens of the state on the question
of calling a Convention, and for the election of delegates
on the same day. Mr. Tyson presented a minority report,
around which the opposition at once assembled all its
strength, as it was a measure of delay, providing for a
special vote to decide for or against a Convention, with the
addition that in case of a favorable result the Governor
was to inform the Legislature of the fact at a special session
or at the next regular one. This body then might provide
for the election of delegates and the assembling of such
a Convention. The contest lasted for some days and was
quite bitter. The minority report, offered in the form of

377] The Maryland Constitution of 1864. 31

amendments to that of the majority, was defeated on Janu-
ary 20 by a vote of 20 in favor to 50 opposed. After long
and excited debate and continued negotiation with the
Senate, the House finally, on February 3, passed the bill
on its third reading by a vote of 43 to 17.

The Senate early appointed a committee to confer with
a like one from the House on the subject of the recom-
mendation for a Convention contained in the Governor's
message. A joint bill was reported on January 18, and
considered by the Senate at various times, till finally the
bill passed by the House was received. Numerous propo-
sitions went back and forth between the two Houses till
finally, at the suggestion of the House of Delegates, a con-
ference committee was appointed on the morning of Feb-
ruary 8. The differences were at once adjusted, and the
committee report sent in that evening was immediately
adopted by the Senate by the vote of 14 to 2. The House
received the report on the next day, and adopted it, yeas
43, nays 15, accepting the minor Senate provisions as to
delegates, etc.

The Convention Bill, as finally passed, contained the fol-
lowing provisions : A vote was to be taken on the first Wed-
nesday of April (6th) at the usual places and in the legal
manner on the question of holding a Convention. At the
same time, delegates to this Convention were to be elected,
the qualifications being the same as those necessary for a
seat in the House of Delegates, and the number the same
as the total representation in both Houses of the Legisla-
ture. In making returns of votes, the judges of election
were to certify, under oath, whether there was military in-
terference (except on demand of the civil authorities), in
case of which the Governor was to order one or more new
elections in the districts affected till that interference was
discontinued. An oath of allegiance was required of all
voters challenged on the ground of disloyalty. If the vote
at the election was favorable to a Convention, the Governor
was to issue a proclamation, calling it to meet in Annapolis

32 The Maryland Constitution of 1864. [378

on the last Wednesday of April (27th), 1864. Sixty-five
delegates of the total of ninety-six were to be elected before
the Convention assembled, and fifty members were neces-
sary for a quorum. No delegate was to take his seat till
he had taken before the Governor a certain stringent oath
of loyalty. The compensation was five dollars a day and
the mileage allowed members of the Legislature. A re-
porter of debates and proceedings was to be provided by
the Convention. The Constitution and form of govern-
ment adopted was to be submitted to the legal and qualified
voters of the state " at such time, in such manner, and sub-
ject to such rules and regulations as said Convention may
prescribe." In case of the adoption of the new Constitu-
tion, the Governor was to issue a proclamation to that
effect, and take the necessary steps to put it into operation.
At the elections provided, the tickets were to be printed on
white paper, other ballots not to be received, and heavy
penalties were imposed on those judges of election or other
civil officers who failed to do their prescribed duty.

The campaign, in consequence of the above, began early.
As the state had declared for emancipation by the previous
fall election, the question now before the people was in
regard to the form that this action wa r s to take. The Un-
conditional Union party of the state boldly took its stand in
favor of immediate emancipation without either compen-
sation of slave-owners or " negro apprenticeship," and the
election, in a great measure, favorably settled this as far
as the people were concerned.

The Conservative Union State Central Committee, at a
meeting held in Baltimore on December 16, 1863, led by
Thomas Swann and John P. Kennedy, had declared for
immediate emancipation in the manner easiest for master
and slave, since the people had willed it at the last election.
This evidently in large measure accounts for the fact that
in Baltimore City and several counties there were merely
" Union " candidates, with no opposition. In others of
the counties, however, there were three tickets " Uncon-

379] The Maryland Constitution of 1864.

ditional " and " Conservative " Union and Democratic.
As in the previous election, the Democrats were not organ-
ized throughout the state, their nominations for Conven-
tion delegates being mainly in the lower counties. They
had no candidates in Baltimore City, and those in Balti-
more County were withdrawn before the election, leaving
the Union nominees alone in the field. Wherever there
were Democratic party organizations, they generally de-
clared themselves opposed to emancipation on any terms. 43
In fact, the declared tactics of those opposed to the Un-
conditional Union program were to delay the call of a
Convention till "all the people of the state could vote,"
claiming that they would then defeat the movement. Fail-
ing that, they fougTTt for compensation for slaves and some
system of negro apprenticeship.

General Schenck had resigned his command soon after
the election in the fall of 1863, in order to accept the seat in
Congress to which he had been elected as a representative
from Ohio. Brigadier-General Lockwood temporarily
filled the position of commanding general till Major-Gen-
eral Lew Wallace was appointed to the command of the
Middle Department on March 17, 1864.

General Wallace was, on the whole, more aggressive
than General Schenck in the administration of his depart-
ment, boldly taking his stand at the outset on the public
declaration that a " rebel and a traitor had no political
rights " whatever. However, on March 30, 1864, he wrote
a letter to Governor Bradford, saying that he was anxious
to frustrate the attempts of disloyal persons (some of them
candidates) to vote on April 6, and asking if there were
state laws and legislative action sufficient to prevent it.
The Governor answered the next day, saying that the laws
were entirely sufficient, if faithfully executed, as he had
every reason to hope they would be, to exclude disloyal
voters from the polls. Therefore General Wallace issued

42 Also see p. 63.
26

34 The Maryland Constitution of 1864. [380

no general military orders like those of General Schenck,
though he compelled Mr. E. G. Kilbourn, a candidate in
Anne Arundel County, to withdraw on account of his
questionable position in 1861 at the outbreak of the war.
But like his predecessor, General Wallace also made the
mistake of publicly showing his sympathy in the election,
saying at an Unconditional Union mass-meeting at the
Maryland Institute in Baltimore on April I, 1864, that " so
far as in him lay, the liberty-loving people of the good old
state should have his assistance."

The Unconditional Union policy was a second time
overwhelmingly victorious on April 6, 1864. The vote on
the Convention was 31,593 "for," to 19,524 "against," a
favorable majority of 12,069, but yet about 8000 less than
Goldsborough's majority in November, 1863, although the
total vote was about the same. The northern and western
counties gave large majorities for the Convention, while
the southern districts went heavily against it. In Balti-
more City the vote was 9102 favorable, with only 87 op-
posed. 43 This shows that some sort of intimidation must
have been practiced, 44 although the American stated 48 that
" the election proceeded very quietly in the city, perfect
order being observed without even the shadow of military
interference."

It appears that soldiers were well distributed throughout
the state, either near the polls or within striking distance,
but the cases of direct interference were not nearly so num-
erous, and were much more scattered than in the previous
election, 4 * while there are even some records of fraud and

u It was claimed that the total vote was only one-third the usual
number hitherto cast. Debates i, 639.

14 See Steiner's " Citizenship and Suffrage in Maryland," p. 42.

41 Issue of April 7. It also urged that the small vote in the city
was due to lack of organization, no opposition, and to no canvass-
ing of candidates who were seeking office. See also " Sun,"
Nov. 7.

"Sun," April 7; Annapolis "Republican" (quoted in "Ameri-
can," April n); Frederick "Examiner," April 13; Debates i,

381] The Maryland Constitution of 1864. 35

outrage on the part of Southern sympathizers. 47 On the
whole, intimidation rather than violence was the cause of
many citizens failing to vote. The judges of election re-
ported only one case of military interference, that in the
Rockville District of Montgomery County. A second
election was held in this district according to the provisions
of the Convention Bill, but as the total county vote had
shown a sufficient Democratic majority to elect the three
candidates on that ticket without any doubt, the final result
was not much affected thereby.

Out of the total of 96 delegates elected, there were 61
Union men, nearly all pledged to unconditional emancipa-
tion, and 35 Democrats, coming mainly from the southern
part of the state.

Governor Bradford, immediately upon the receipt of
the official returns, issued a proclamation for the assem-
bling of the Convention on Wednesday, April 27, 1864.

The first act of the emancipation drama was now com-
plete. As we have attempted to show, the movement was
aided more by the general policy of armed restraint exer-
cised upon the Southern sympathizers of the state by the
National Government since the beginning of the war, than
by any of the above-mentioned instances of military inter-
ference. The radical Union program had been a success.

582, 639-40; ii, 915-6; iii, 1726, 1763. Scharf, "History of Mary-
land," iii, 579-80, gives an account of a most unfair system of chal-
lenging and questioning, aimed against those under suspicion of be-
ing Southern sympathizers. Also see Nelson, " History of Balti-
more," 551-2.

47 Frederick "Examiner," April 13; "Sun," April 7; "Ameri-
can," April 7, 8.

II.

The Convention met at the State House in Annapolis on
Wednesday, April 27, 1864. Of the ninety-six members
elected, eighty were present on the first day. The re-
maining sixteen, of whom fifteen were from the southern
counties, appeared within the next week or two, with the
exception of John F. Dent, of St. Mary's, who did not take
his seat in the Convention till July 7, having been detained
by illness in his family and other domestic causes.

It would have been difficult to have found at that time
a more representative body of Maryland men, nearly all of
them native-born to the state, with two striking exceptions
Henry Stockbridge, of Baltimore City, a native of Mas-
sachusetts, and Oliver Miller, of Anne Arundel, a native of
Connecticut who were prominent in the councils of the
majority and minority respectively. The members from
the southern part of the state in particular, were largely
from the oldest and best known families of Maryland, and
showed their conservatism in the fact that they formed the
minority which not only opposed emancipation, but also
nearly all other measures of reform introduced in the Con-
vention.

Five of the members had been in the Convention of
1850-1 which had formed the old Constitution Messrs.
Chambers, Dennis, Dent, Lee and Ridgely and J. S.
Berry, of Baltimore County, had been Speaker of the House
of Delegates of the " Know Nothing " Legislature of 1858,
and at this time held the office of Adjutant-General of the
state. Messrs. Goldsborough, Smith of Carroll, Briscoe
and Dennis had been members of the celebrated " Fred-
erick Legislature " * of 1861, the two former as pronounced

1 Suppressed by the military authorities.

383] The Maryland Constitution of 1864. 37

Unionists, and the others on the opposite side. Mr. Golds-
borough was now State Comptroller, having been elected
at the previous fall election as we have seen. Fourteen
had been members of the Legislature of a few months
before, of whom Messrs. Stirling and Stockbridge, both
of Baltimore City, had been most active in preparing and
advocating the Convention Bill in the Senate and House
respectively, while Messrs. Clark, of Prince George's, and
Dent, of St. Mary's, had been leaders of the opposition to
it in the House of Delegates.

In fact, it is seldom that one reads the records of events
of the ten or fifteen preceding years without coming upon
the names of many of those who were members of the Con-
vention of 1864.

Taken as delegations, those from Baltimore City, Alle-
gany and Prince George's counties were perhaps the
stronger, though several others were of nearly the same
excellence. Many members who had been side by side in
the ""Whig" and "Know Nothing" parties, or even the
" Union Party " days of 1860, were now ranged on opposite
sides, in this only showing the power of that mighty force
which had sundered the former political ties of so many
of the people of the state.' It should be said in addition,
that nearly all the leaders were of the legal profession.

From the outset, the majority took a stand as support-
ing the Union and the National Government, especially
in its policy as set forth in Mr. Lincoln's administration, and
their measures were planned with the intention of keeping
Maryland well in line with these ideas. These sixty-one
Union members were from, the northern and western coun-
ties, Baltimore City, and Talbot, Caroline and Worcester
counties of the Eastern Shore, these latter three the south-
ern slave counties in which the cause of the Convention had

2 For instance, Messrs. Chambers and Stirling were formerly
Whigs, Messrs. Smith (of Carroll) and Dennis had been candi-
dates on the Bell and Everett electoral ticket in 1860. Mr. Golds-
borough was formerly a Democrat.

38 The Maryland Constitution of 1864. [384

been successful, particularly in Worcester, where the ma-
jority had been overwhelming. 8 These men, while firm and
aggressive in their policy and expressing a sense of great
responsibility, 4 can seldom be accused of unfairness, as
they resorted to high-handed methods in very few instances.
Although relying on their large numerical superiority, they
sometimes kindly informed the minority at the beginning
of a debate that the final outcome was already settled, a
statement more forcible than pleasant, 8 yet, on the whole,
more fault could be found with the provisions they carried
through than with the manner of doing so.

Very few regular caucuses were held by the majority
members,* for they had been largely elected on and pledged
to the same platform, so that they were a unit in many par-
ticulars, though differing widely on certain subjects, as the
judiciary, internal improvements, etc., which will be noted
later. Owing to their decided numerical superiority, it
was almost entirely unnecessary to use the " party whip "
or any other political methods in order to secure a majority
vote. Archibald Stirling, Jr., of Baltimore City, may be
regarded as their leader. He frequently closed the debate
with brilliant and forceful arguments among the best of
those given in the Convention rather " cutting " at times,
but always clear and logical. 7 He was ably seconded by
Henry Stockbridge, of Baltimore City, another of the
strongest men in the Convention; John E. Smith, of Car-
roll; Wm. T. Purnell, of Worcester, and others scarcely
less able. As stated above, the Baltimore City delegation
was extremely influential as a whole, usually standing

'890 "for," 135 "against." We can only repeat the difficulty
of saying how much of this had been caused by force or intimida-
tion.

4 Deb. i, 351-2.

8 The minority often complained of their position in this respect.
See Deb., i, 274, 326, 521-2, 569; ii, 764.

8 Authority of Mr. Joseph M. Gushing, a surviving member of the
Baltimore City delegation.

7 For an opponent's estimate of Mr. Stirling, see Deb., iii, 1748.

385] The Maryland Constitution of 1864. 39

for the most modern and advanced measures, and aroused
little opposition or jealousy on the part of the county mem-
bers.

The thirty-five Democrats who formed the minority,
bravely, tenaciously and ably upheld their principles in a
manner worthy of admiration, but always professed their
loyalty to the Union as embodied in the Constitution of
the United States. Their position was based on state's
rights, a policy of conciliation toward the South, and, as far
as possible, a continuation of political and industrial con-
ditions as existent in the state and nation before the out-
break of the war, which they condemned as unnecessary
and an oppression of the South. They asked if it was
" any more treason for the South to subvert the Constitu-
tion by force of arms, than . . . for President Lincoln,
with his army, to subvert the Constitution by force of
arms." '

These members came entirely from the ten southern and
Eastern Shore counties of Kent, Queen Anne's, Dorchester,
Somerset, Anne Arundel, Montgomery, Prince George's,
Charles, Calvert and St. Mary's. These were the counties
which were usually designated by the Union men as
" Rebel " and " Pro-Slavery." '

One of the majority members has since said in private
conversation that the minority contained " a larger num-
ber of brilliant men for its size than any other body which
has ever come together in a legislative capacity in Mary-
land." Though no one man stands out as their leader in
the same dominating capacity as did Mr. Stirling in con-
nection with the majority, perhaps David Clarke, of Prince
George's comes nearer to this position than any other. His
speeches in the Convention, when read at the present day,
are of the greatest interest, as showing the attempt of a bril-
liant man of modern times to justify and perpetuate the
institutions of a bygone age. In fact, this may be said of

8 Deb., ii, 1357. 9 " American," May 4, 1864.

40 The Maryland Constitution of 1864. [386

a number of the minority members. Edward W. Belt, also
of Prince George's, was an exceedingly strong man, in
many ways tme of the most advanced of his party, as his
course on the " usury " question will show. 10 A third man
from the same county, Samuel H. Berry, and also Oliver
Miller, of Anne Arundel; James U. Dennis, of Somerset;
James T. Briscoe, of Calvert, and John F. Dent, of St.
Mary's, were all of great force and influence. With them
should be mentioned Ezekiel F. Chambers, of Kent, who
always acted with the minority, and at last definitely iden-
tified himself with them, although at first claiming to rep-
resent no party. Though elderly and usually of too great
conservatism, yet his prominence is apparent when we
observe that he had been sixteen years in the State Legis-
lature and in Congress; had been a member of the Conven-
tion of 18501, and was about to be the Democratic candi-
date for Governor in the fall of 1864.

The minority, in addition to opposition in debate and by
vote, showed great ingenuity in falling back from one posi-
tion to another, as soon as the former was made untenable.
A good instance of this will be seen in the emancipation
question, where a continuation of slavery, state and na-
tional compensation, and negro apprenticeship were advo-
cated in turn. Both parties were very ready to call for the
yeas and nays on leading questions, especially the minority,
who desired to put their opponents individually on record
as favoring the extreme measures which were passed.
They also used tactics of delay in some instances, but with
little success, as the majority could usually outvote them.
Hence they did not carry this sort of opposition very far,
knowing the final futility of any such attempts. At times
vigorous complaint was made against the use of the pre-
vious question by the majority in order to shut off debate.
This was largely during the latter half of the session of the
Convention, when the work was being pushed with great
activity.

10 See pages 82-83.

387J The Maryland Constitution of 1864. 41

The first two months were mainly occupied with long and
vigorous debate on the slavery and National allegiance
questions, in which both sides expressed their views freely
and often at great length. The majority frequently pro-
fessed themselves as desiring perfect fairness," and the
records go to show that, as a rule, such was the case." Con-
sidering the weight of the questions involved, and the close
personal interest in them on the part of the members of the
Convention, many of whom not only owned slaves, but
had relatives and friends in the opposing armies, the debates
show a remarkable lack of personal abuse and recrimina-
tions. This was at a time when the fiercest of campaigns
were being waged by Grant and Lee in Virginia, and
Sherman and Johnston in Georgia, while the state of Mary-
land itself suffered under an extensive invasion. In addi-
tion, the whole country was agita'ted over the political cam-
paign preceding the presidential election of 1864, and
charges of " lawless oppression " were answered with the
terms of " traitor " and " Copperhead." It is pleasing to
note that throughout the entire period of the Convention in
Annapolis, the personal relations of the members were most
pleasant. Great cordiality prevailed, and friendly discus-
sion and quiet conversation on matters pertaining to the
business of the Convention frequently took place as the
members of the opposing parties met in their daily affairs
outside the State House walls.

On Wednesday, April 27, as above stated, the Convention
held its first meeting. Henry H. Goldsborough, of Tal-
bot County, the State Comptroller, was elected president,
receiving the entire vote of the fifty-eight Union men
present. Ezekiel F. Chambers, of Kent, had been placed
in nomination for the office by the opposition, but de-
clined, and the twenty-one minority members did not vote.
The remainder of the process of organization was speedily
effected during the next few days. The standing com-

11 Deb., i, 118, 207, 350. " Deb., i, 569.

42 The Maryland Constitution of 1864. [388

mittees, authorized on April 28, were appointed on May 4,
and to them were at once referred the many suggestions
that had already been made by various members, as to
provisions to be embodied in the new Constitution. On the
same day a committee of six from the Baltimore City
Council, three from each branch, presented unanimous
resolutions passed by that body, inviting the Convention to
hold its sessions in Baltimore, and offering to engage a hall
for that purpose at the expense of the city. There was a
short debate as to the advisability of the step, it being
urged that Baltimore would be a much more convenient
place of meeting, for the Eastern Shore members in par-
ticular. Although the contrary ground was taken that it
would be illegal to move the Convention from Annapolis,
yet motives of expediency really prevailed, and the invi-
tation was declined by a non-partisan vote of 51 to 35."

On June 2 an unsuccessful attempt was made by several
members to reconsider this action, but nothing further came
of it." On May 12, Mr. Kennard, of Baltimore City, made
the report of the Committee on Rules." This report em-
bodied the usual rules governing legislative bodies, and
was finally adopted with slight amendments on May 23."
Provisions for the Constitution were required to be passed
by a majority of the members elected to the Convention,
but this was afterwards changed by motion of Mr. Cushing,
of Baltimore City, to a majority of those present" The
minority strongly opposed this, claiming that, as fifty mem-
bers would make a quorum, twenty-six out of the ninety-
six elected could thus put a final provision in the Consti-
tution. 1 * The first vote on the question was adverse, but
being brought up again under a slightly different form, it
was passed by a vote of 47 to 33, though several of the ma-
jority opposed the measure. The majority based their

13 Proceedings, 19-21. 14 Proc., 147; Deb., i, 300-1.

15 Proc., 46-56. " Proc., 90.

17 Proc., 109-10, 115-8; Deb., i, 180-5, 202-12. "Deb., i, 181.

389] The Maryland Constitution of 1864. 43

main argument on the desire to expedite business. It
should be added, that during the consideration of the re-
port the minority made every possible attempt to have a
large vote of those elected to the Convention required on all
important questions, but their amendments to that effect
were regularly voted down. 18 They thus lost all oppor-
tunity for delaying proceedings by absence from the Con-
vention and like expedients.

Almost two months were consumed before the Conven-
tion had perfected its organization and passed the Declara-
tion of Rights which contained the very important provi-
sions in regard to slavery and allegiance. During the first
five weeks of the session the debate was unlimited, both
sides indulging in speeches of great length, but on June 2
the time was limited to one hour, the minority voting in the
negative, as it seems to have been particularly desired that
absolute freedom be allowed until the Declaration of Rights
was disposed of. 50 The majority again urged expediency,
and the usual arguments were successively brought up later,
when the debate was further restricted, on July 7," to thirty
minutes, a two-thirds vote of the members present being
necessary to allow the speaker to proceed. On July 29 a
limit of fifteen minutes during the discussion of a basis of
representation was imposed," and definitely placed at twenty
minutes on all questions on August 24. M On August 31
the absurdly small limit of five minutes was attempted but
voted down, the negative vote being cast by the solid
minority and several majority members. On July 7, Mr.
Belt, of Prince George's, had offered the sarcastic motion
that " there shall be no debate on any subject whatever,"
which was of course lost."

The Convention adjourned over from June 4 to the.
9th, on account of the Republican National Convention, to
which several of its members were delegates. That body

19 Proc., 75-6. * Proc., 146-7; Deb., i, 293-300.

21 Proc., 230-2. M Proc., 356. a Proc., 562. " Proc., 232.

44 The Maryland Constitution of 1864. [390

met in the Front Street Theatre, Baltimore, on June 7,
1864. It adopted a platform strongly urging the prosecu-
tion of the war and endorsing the policy of the National
Administration. After nominating Lincoln and Johnson,
it adjourned on June 8.

The Convention again, on June 24, adjourned over till
July 6, as a number of the members desired time to attend
to personal affairs, especially the farmers, who had their
crops to harvest. 15 Work had hardly been resumed, when
the celebrated " Rebel Raid " occurred and interrupted pro-
ceedings for nearly two weeks more. This invasion of
Maryland deserves some attention, as it was of great con-
sequence to the people of the state, and caused a bitter
clash between the opposing sides in the Convention.

During the latter part of June, 1864, General Lee sent
General Jubal A. Early with a force, probably some fifteen
thousand men, to move down the Valley of Virginia and
make a demonstration against Washington, hoping thus
to relieve the pressure of General Grant's armies upon
Richmond. This force, after crossing the Potomac near
Shepherdstown and Falling Waters, occupied Hagerstown
on July 6, and its advance skirmished with Union troops as
far as Frederick. On Friday, July 8, the main body occu-
pied this town, and on the next day (July 9) met and de-
feated General Lew Wallace at Monocacy Junction. The
Union force was estimated at between seven and eight thou-
sand men, and was composed of those troops which Gen-
eral Wallace was able to collect in order to defend Balti-
more. It behaved well in the battle which lasted nearly
eight hours, but retreated in great disorder to Ellicott's
Mills. The main Confederate force turned south and occu-
pied Rockville, threatening Washington and skirmishing
within sight of that city. A small cavalry force, of which
Major Harry Gilmore was one of the commanders, was
sent to operate north and east of Baltimore. It cut the

"Proc., 225-6; Deb., i, 743.

391] The Maryland Constitution of 1864. 45

Northern Central Railroad near Cockeysville on July 10,
and pushed across the country, cutting the telegraph wires
on the Harford and Philadelphia turnpikes. A small de-
tachment came down Charles Street Avenue and burned
Governor Bradford's handsome residence five miles from
Baltimore at an early hour on the morning of July n. This
was done as a retaliation for the burning of the residence
of Governor Letcher, of Virginia, by a Union force under
General Hunter.

There was skirmishing on the York Road at Govans-
town, a few miles from the city, and also near Pikesville,
but the main part of the force struck the Philadelphia Rail-
road at Magnolia Station, eighteen miles from Baltimore,
and captured two of the morning trains from the city; also
burning the Gunpowder River bridge. They soon after
retired toward the west and joining the main body of Gen-
eral Early's army, the whole force recrossed the Potomac
at Seneca and near Poolesville, carrying a large amount
of booty with them. A levy of $200,000 had been laid
upon Frederick and collected before the town was evacu-
ated."

The excitement throughout the state was most intense,
but at no place greater than in Baltimore City, especially
on Sunday, July 10, when it was learned that General Wal-
lace had been defeated at Monocacy. The city was
startled at an early hour of that day by the general ringing
of alarm bells, and in a short time the streets were thronged
with excited crowds. A joint proclamation was issued by
Governor Bradford, who was in the city, and by Mayor
Chapman, calling upon the citizens to rally at once to resist
the invaders, and the City Council, by a joint resolution,
appropriated $100,000 to aid in the defense. The call
met with a ready response, and it was estimated that about
ten thousand of the citizens of Baltimore were organized.
Major-General E. O. C. Ord arrived in the city on Monday,

See contemporary newspapers for further particulars.

46 The Maryland Constitution of 1864. [392

and, by order of President Lincoln, assumed command of
the 8th Army Corps, relieving General Wallace from that
charge. Fortifications were rapidly thrown up and further
preparations were hastily made, in anticipation of the threat-
ened assault, but of course this never occurred, as General
Early retreated soon after. It is said that after the first
excitement there was great quiet and good order in Balti-
more, affairs soon subsiding again into their usual chan-
nels. General Wallace was restored to his command on
July 28."

During this raid most of the Convention members left
Annapolis, and no regular meetings were held for ten days.
President Goldsborough and a few members remained in
the town, and by meeting and adjourning from day to day,
kept the organization of the Convention intact, till business
was resumed on July 19. Mr. Goldsborough and several
others also did duty in the fortifications of Annapolis. As
a result of the invasion, some effect on the temper of the
Convention was to be expected, and this was not long in
appearing. On July 9, before the nearness of the danger
caused the Convention to scatter, Mr. Cushing, of Balti-
more, offered a resolution protesting loyalty to the Union,
and " preferring rather than consent to the destruction of
the Union of these United States, to have the whole land
laid waste and its entire population destroyed, hoping that
in the future, it might be resettled by some race of men more
capable of appreciating and preserving Liberty and Union."
Further, all sympathizers with the rebellion were denounced
as " recreant to the faith of their Fathers, forsaken of God,
and instigated by the devil." There was some difficulty in
securing a quorum, as the attendance was small on that
day, but in spite of a minority attempt to adjourn, the reso-
lution was successfully passed."

On July 19, immediately after business was resumed,

17 See contemporary newspapers for further particulars.
M Proc., 247-9.

393] The Maryland Constitution of 1864. 47

there was another outburst of great anger on the part of
the majority. By motion of Mr. Hatch, of Baltimore City,
thanks were tendered to Ishmael Day, of Baltimore County,
" for the heroic and gallant act in shooting down the traitor
who dared to pull down the country's flag." Mr. Schley,
of Frederick County, offered an order that the Convention
request the President, " as an act of justice and propriety,
4o assess upon known sympathizers with the rebellion resi-
dent in this state, the total amount of all losses and spolia-
tions sustained by loyal citizens of the United States resi-
dent in this state, by reason of the recent rebel raid, to
compensate loyal sufferers." This was passed by a vote of
33 to 17, the minority solidly opposing it." On the follow-
ing day Mr. Belt offered a resolution that this order " was
improvidently passed, and that the same be and is hereby
rescinded," but it was overwhelmingly defeated by the ma-
jority members. 30 On this same day Mr. Stirling sub-
mitted resolutions which, considering the number of South-
ern sympathizers in Maryland, as the experience of the past
two weeks had shown, demanded of the Government of the
United States that all those refusing to take the oath of alle-
giance or who shall have been " proved to have taken part
with or openly expressed their sympathy with the recent
invasion of the state ... be banished beyond the lines of
the army or imprisoned during the war." ' These resolu-
tions were passed on July 21." The minority consistently
fought all these extreme proceedings, the resolutions being
characterized as " unjust, extraordinary and inhuman," "
and they not only voted against them, but actively opposed
them in debate, urging in particular that the Convention
was exceeding its authority by thus acting in a legislative
capacity. Mr. Belt vainly attempted to amend Mr. Stirl-
ing's resolutions by declaring that nothing contained
therein should* be taken to endorse any other theory of the

39 Proc., 257-8. " Proc., 267-8; Deb., ii, 830-1.

81 Proc., 265-6. M Proc., 273-7. " Deb., ii, 873.

48 The Maryland Constitution of 1864. [394

war than that declared in 1861, in which state's rights had
been guaranteed and the desire expressed to preserve the
Union according to the ante-bellum conditions." Mr.
Sands, of Howard, well expressed the position of the ma-
jority members by saying: " It comes to the question
whether you will give to the loyal people of the state of
Maryland the power of the state, or whether you will allow
the secessionists to force them to the wall and make them
give up all their rights under the- Constitution and the
government or drive them from the state. For one, as a
Union man, holding my allegiance to the government
straight through, I prefer to be one of the men that shall
live in Maryland.'"

On August 5, Mr. Chambers, on behalf of the thirty-five
minority members, presented a protest signed by all of
them, in which they strongly condemned these various
resolutions. In this protest they stated that the delegates
to the Convention " were elected under a law of the state,
to form a new constitution of civil government to be sub-
mitted to the people, and not to invite the inauguration of
an unlimited military despotism in the state." The resolu-
tions were condemned as being in direct conflict with many
provisions of the Declaration of Rights as lately adopted.
The protest closed by saying: " In behalf of the people
we represent, and of all the peace-loving and law-abiding
people of Maryland, and in behalf of all the fundamental
principles of civil liberty and constitutional government,
we enter this, our formal protest, against the said action of
the said delegates to this Convention." 3

The majority stigmatized this protest as discourteous to
the Convention, and it was refused a place upon the journal
by a vote of 42 to 26, although several of the Union mem-
bers opposed this latter action, and five of them voted with
the Democrats." This closed the incident.

14 Proc., 273-5-

85 Deb., ii, 826. For debate on the various resolutions, see Deb.,
ii, 800-1, 820-31.
"Deb., ii, 1128. "Proc., 397; Deb., ii, 1126-38.

;?95] The Maryland Constitution of 1864. 49

A point of much importance during the sessions of the
Convention was the question as to the eligibility of certain
members. It was commonly known that a number of them
were ineligible, according to the Convention Bill, which
imposed the same qualifications as those necessary to a seat
in the House of Delegates. On July 7, Mr. Miller sub-
mitted an order requiring the Committee on Elections to
make a report as to what the qualifications for a seat in the
Convention actually were, but added that he meant this
to be an entirely non-partisan measure, as it would equally
affect both the majority and minority. This order was
tabled by motion of Mr. Stirling, who stated that it would
either accomplish nothing or else result in breaking up the
Convention. 88 The Committee on Elections, which had
been appointed early in the session, had as yet made no
report, so on July 8 Mr. Chambers submitted an order re-
questing the committee to do so as soon as possible. A
favorable vote on this was at once secured, but Mr. Cush-
ing's order instructing the committee to report all members
duly elected was lost by a vote of 17 to 47." On August 3
the committee, consisting of of four Union and two Demo-
cratic members, unanimously reported all the members as
duly elected. 40 This report was concurred in on August 9
by a vote of 55 to 4, Mr. Miller being the main opponent
and basing his adverse argument on legal technicalities. 41
On August 6 Mr. Belt had offered a resolution declaring,
for reasons stated, that eleven named members were in-
eligible to a seat in the Convention, himself being one of
the number. 42 This was indefinitely postponed on August
9, and never appeared again. 43 It is worthy of note that,
although two members of the minority, Mr. Miller and Mr.
Belt, were the ones who insisted on the inquiry and led in
this " strict construction " movement, the final action was

88 Proc., 229; Deb., ii, 796. M Proc., 240-2.

40 Proc., 385-6. "Proc., 435-6; Deb., ii, 1195-1201.

41 Proc., 414-5. ** Proc., 436.

27

50 The Maryland Constitution of 1864. [396

entirely non-partisan, it being the general sentiment of the
Convention that the people in their sovereign capacity had
the right to elect whomsoever they pleased to represent
them in that body, even the Convention Bill to the con-
trary, though some based their position on different inter-
pretations of that instrument."

The Convention held one session a day till July 21, when
it was decided to meet in the evening as well, on every
working day except Saturday." These latter sessions were
not attended very well as a rule, there being no quorum
present on eight different evenings. There was much delay
in the work of the Convention, the larger part of the new
Constitution as finally adopted being passed during the last
six weeks of the session. The long discussion of the
Declaration of Rights and the interruptions consequent
upon the pressure of outside affairs as stated above, were
largely responsible for this. As the people of the state were
beginning to show impatience, 46 the general result was haste
towards the end, although this caused additional mutterings.
Three sessions were held each day during the five days pre-
ceding adjournment.

The Convention finally adjourned on Tuesday, Septem-
ber 6, 1864, having passed a resolution that, in view of the
uncertain condition of affairs in the state " which might in-
terfere with the expression of the popular will on the day
to be fixed for voting on this Constitution," the adjourn-
ment was subject to the call of the president, and in case of
his death or disqualification, Messrs. Schley, Pugh, Stock-
bridge and Purnell were authorized, in the order named,
to act as president and call the Convention together. 47

A resolution of thanks to President Goldsborough for his
" dignified, efficient and impartial discharge of the duties
of the chair " was offered by Mr. Chambers, and unan-

" Deb., ii, 764-8; iii, 1730. *> Proc., 272.

" American," June 10, Aug. 2; Frederick " Examiner," June
22; Deb., i, 98, 148, 204-5, 322-4. " Proc., 600, 773.

397] The Maryland Constitution of 1864. 51

imously adopted, several of the minority leaders heartily
endorsing it. 48 The order in the Convention had been ex-
ceptionally good. 48

The sessions of the Convention had lasted four months
and ten days, and the average daily attendance had been
about sixty. The largest number present on any one day
was ninety-one, on June I, and the smallest was seven, on
July 1 8, at the close of the period of Early 's invasion. There
was numerous attempts to compel the attendance of mem-
bers, to publish the names of absentees, or to deduct pay
for unexcused absence, but they all came to nothing, being
usually tabled by good majorities. 50

As stated above, there was no inducement for the
minority to attempt to delay proceedings by absenting
themselves from the Convention, as the majority were nu-
merically large enough to transact business without any aid
from their opponents, after the rules of order had been
modified to permit the adoption of a provision by a ma-
jority of the members present.

After some vacillation and delay, showing that there must
have been some compunctions of conscience on the part of
several members, the Convention followed the example of
the preceding legislature (1864), and by a small majority,
voted themselves $100 extra mileage." They based this
action on the clause in the Convention Bill allowing them
the same mileage as the Legislature, and thus threw on the
other body any blame for an illegal proceeding. This
action was entirely non-partisan, the leading members of
both sides dividing into opposing groups on the question.

It should be added, that in compliance with the Con-
vention Bill the debates and proceedings of the Convention
were well reported, and in point of excellence far exceed
many of the other state documents and reports of that time.

Having taken this survey of the sessions of the Conven-

48 Proc., 709; Deb., iii, 1852. *" Deb., iii, 1757.

00 Proc., 78, 89, 157, 162-3, 183, 286, 498. 51 Proc., 707, 715-8.

52 The Maryland Constitution of 1864. [398

tion and its workings as a whole, we now come to the far
more important consideration of the results as shown in
the new Constitution submitted to the people.

The first report made by the standing committees having
in charge the various provisions for the Constitution was
that on the " Declaration of Rights " on May 12." As
reported, and, in fact, as finally adopted, it was largely
identical with the original " Bill of Rights " adopted in
1776, and incorporated in the Constitution of 1851."

The consideration of the report was immediately begun,
and consumed more time than any other part of the Con-
stitution, occupying the larger part of the first half of the
entire session of the Convention, for it settled some of the
questions that had helped to influence the call for a new
Constitution.

Foremost in importance was the new article of the report,
which abolished slavery in Maryland, providing that " here-
after in this state, there shall be neither slavery nor invol-
untary servitude, except in punishment of crime, whereof
the party shall have been duly convicted; and all persons
held to service or labor as slaves, are hereby declared
free." l This article was reached on June 17, and was hotly
debated for a week. It is hardly necessary to review the
various speeches, as the usual arguments were set forth by
both sides, and though most ably presented, were largely
a re-statement of those heard throughout the nation during
the preceding hundred years. For instance, the minority
would absolutely justify slavery by long quotations from
the Bible, and the majority, on the other hand, would in-
sist that the American slave system differed radically from
that acknowledged by the Scriptures. In addition, these
latter members denounced the institution as immoral, un-
just, and an incubus upon the life of the state. Ancient

Proc., 58-64. (The minority report was defeated.)
Deb., i, 185.
84 Article 23 in report, Article 24 in t he Constitution as adopted.

399] The Maryland Constitution of 1864. 53

and modern law, the Declaration of Independence and Con-
stitution of the United States, the writings of the founders
of the Republic, Supreme Court decisions, and various
enactments since the formation of the Union in fact, every
conceivable authority or argument of any time or age was
skilfully advanced by the advocates of the respective sides
of the question. Although knowing the final outcome
would certainly be against them, the minority stubbornly
continued the fight till the last. They suggested the in-
corporation of provisions prohibiting the immigration of
free negroes into Maryland, or any contracts with or em-
ployment of such persons, and providing for the coloniza-
tion outside of the state of those negroes already within
her borders. 60

Also, Mr. Clarke offered a substitute to the emancipa-
tion article, which declared the slaves in Maryland free
after January I, 1865, but on condition that the United
States Congress before that time should appropriate the
sum of twenty million dollars to compensate the owners
for their slaves. 80 This was of course opposed by the ma-
jority as it would in all probability have been a very suc-
cessful means of indefinitely continuing the institution,
and the amendment was withdrawn by general consent."
Mr. Brown of Queen Anne's offered another amendment
providing for state assumption of the duty of the comfort-
able maintenance of the helpless and paupers emanci-
pated, but this was voted down. 88 The final vote on the
article as reported by the committee was taken on June
24, and the provision was adopted on strict party lines by
53 yeas to 27 nays. 8 " This action, so momentous in its
consequences, was but the fulfillment by the Convention
of the Unconditional Union victories of November 4, 1863
and April 6, 1864, and although it had yet to pass the same
ordeal of a further ratification by the people, slavery was
practically dead from that hour.

53 Proc., 79-8o. so Proc., 210. " Proc., 215.

18 Proc., 219, 223-4. w Proc., 224-5.

54 The Maryland Constitution of 1864. [400

Granting the fact that they should lose their slaves, the
owners naturally desired to obtain some sort of compen-
sation, and the minority never abandoned one form or other
of this idea. This might be effected in two ways by the
state, or else by the nation. As state action could be
controlled by the Convention to a great extent, while any
reliance on Congressional action would be fallacious, the
minority insisted on this former measure. On the other
hand, as already stated, the spring campaign had been
fought on this very question, with the result that nearly
all the Union delegates were pledged against it with the
exception of those from Baltimore and Howard counties,
but even these were merely instructed to procure national
compensation if possible. Also a majority caucus held in
Annapolis on April 28 at the beginning of the session
unanimously decided that the Convention was bound by
the popular verdict to emancipation without state com-
pensation."

The minority nevertheless firmly maintained that slaves
were or had been private property w r hich should not be
taken for public use without compensation. 61 The ma-
jority either denied this in toto or else held that slavery was
a " nuisance," and no payment should be given for the
abatement of it. 02 Other arguments were brought forth
by the latter, including the statement that they were un-
willing to saddle the state with' a large debt for this pur-
pose," the Baltimore delegates in particular objecting on
account of the fact that while a large part of the conse-
quent increase of taxation would fall on the city, it would
receive a small portion of the compensation, owing to the
comparatively few slaves within its bounds. The majority
report of the Committee on the Legislative Department,

""American," Apr. 30, 1864.

61 Deb., i, 596-721. " Deb., i, 590-1.

* The slaves were valued at from thirty-five to forty million
dollars in 1860. Mr. Clarke's representative scheme of compensa-
tion involved a payment of about twenty-six millions (Deb., i, 656).

401] The Maryland Constitution of 1864. 55

made a few days before, had contained the provision (sec-
tion 40) that " The General Assembly shall pass no law,
nor make any appropriation to compensate the masters or
claimants of slaves emancipated from servitude by the
adoption of this Constitution." e A minority report pro-
posed a provision especially giving this power, 95 but it was
voted down when introduced as an amendment/* Mr.
Brown here again attempted to introduce an article pro-
viding for the maintenance of the emancipated slaves un-
able to support themselves," but the majority defeated it,
urging that the counties rather than the state should care
for the local poor, and that the regular laws of the state
dealing with this subject would be sufficient. 88 A motion
to strike out the above section of the committee report
failed, and it was adopted on July 25 by the vote of 38 to
13."" Mr. Briscoe of Calvert on August 31 made the last
attempt of the minority to obtain state compensation by
shrewdly offering an amendment to the provisions for the
taking of the vote on the Constitution, which provided
that at the same time there should be a separate vote on
this question. This was promptly defeated with no debate
of any consequence, the " previous question " being used/
The minority doggedly turned next to the question of
national compensation, and with slight success, for the
majority members, although rather generally opposed to
this as well, might have been put in an embarassing posi-
tion had they openly come out against it. It will be at
once remembered that one of the great traits of the Un-
conditional Union party, to which most of the latter be-
longed, had been uncompromising support of President
Lincoln's entire policy, and that necessarily included his
offer of national compensation for the slaves in the border

64 Proc., 193- M Proc., 209. M Proc., 304.

Proc., 306. " Deb., ii, 954, 957; Proc., 309.

09 Proc., 309-10, Article 3, sec. 36, of the Constitution.
70 Proc., 669-70.

56 The Maryland Constitution of 1864. [402

states. The Democrats in the Convention did not fail
to push their advantage.

Early in the session Mr. Clarke had presented a reso-
lution providing for a select committee to confer with
President Lincoln on the subject, 71 but Mr. Negley of
Washington offered an amendment including a declaration
of emancipation in Maryland, and the whole matter was
tabled without debate. 72 We have also seen Mr. Clarke's
second unsuccessful attempt, in which he desired to make
emancipation conditional upon national aid. 71 But as the
question of slavery within the state was now definitely
settled, the majority could no longer oppose action looking
toward national compensation on the ground that it af-
fected the final result in the state, so on July 26, Mr.
Duvall of Montgomery submitted a provision to be added
to the legislative report allowing the General Assembly
to provide for the distribution of any money received from
the General Government for the purpose of compensating
the slave-owners. Mr. Jones of Somerset added an
amendment including among the beneficiaries the owners
of those slaves which had been taken under the authority
of the President for use in military and other like enter-
prises, but this however was lost. Mr. Stirling now
grasped the situation and offered a provision which seemed
to satisfy both sides and was at once adopted with only
one negative vote. 14 It was incorporated in the Constitu-
tion as Article 3, section 45, and provided that the " Gen-
eral Assembly shall have power to receive from the United
States any grant or donation of land, money or securities
for any purpose designated by the United States, and shall
administer or distribute the same according to the condi-
tions of the said grant." The motion that the General
Assembly be required in addition to make some provision
for perpetuating records of slave ownership was at once
defeated eta the ground that it was unnecessary."

71 Proc., 134. 71 Proc., 147-8. n See page 53.

74 Proc., 319-20. "' Proc., 332-4; Deb., ii, 997-1000.

403] The Maryland Constitution of 1864. 5?

With the object of making as certain as possible any
prospect of the desired governmental aid, the minority
finally succeeded in having passed near the close of the
Convention a resolution appointing a committee of seven
to visit Washington and request of the President that he
recommend to Congress an appropriation for the former
slave-owners of Maryland." The committee was duly ap-
pointed but the compensation was never received. It
should be mentioned that the majority somewhat lessened
any feelings of elation which the so-called " Rebel " slave-
owners might feel at the prospect of receiving " Green-
backs " from the Government, by providing that the latter
should first take the oath of allegiance before receiving
any such sums."

However, the minority were not at all satisfied with this
small gain, but continued to use every expedient to per-
petuate at least a small part of the former slave-owners'
rights. With this object in view they heartily supported
the project of the apprenticeship, particularly to their
former owners, of negro minors. This subject was, for-
tunately for them, brought forward by a member of the
majority. Mr. Todd of Caroline, with several others of
his party, favored such a step, though the larger part of
them had been pledged against it as one of the campaign
issues, 7 " and opposed it as being either unnecessary under
the existing state law for apprenticeship, or else a " con-
cession to the slave power" which practically postponed
the emancipation of minor slaves till they became of age. 78
The minority on the other hand held that apprenticeship
would be only a merciful provision for many helpless chil-
dren, and a small measure of justice to the former owners
in giving some return for the previous support of minors
during their infancy. Mr. Negley and Mr. Purnell were
two of the Union members who held these views. 80 The

7 " Proc., 713-5. " Proc., 719, 771-2- 78 See page 32.

Deb., iii, 1577, et seq. M Deb., iii, 1583, 1591-2.

58 The Maryland Constitution of 1864. [404

movement for apprenticeship, although prominent in the
minds of the members during a large part of the debate,
particularly during the consideration of the questions of
emancipation and compensation and of the legaislative de-
partment, 81 did not assume final form till August 26, when
Mr. Todd submitted his proposition in the form of an
amendment to the report of the Committee on the Judi-
ciary Department, providing an additional section which
made it the duty of the Orphan's Courts of the state to
bind out till they became of age " all negroes emancipated
by the adoption of this Constitution, who are minors, in-
capable of supporting themselves, and whose parents are
unable to maintain them," with the addition that " in all
cases the preference shall be given to their former mas-
ters, when in the judgment of said courts they are suitable
persons to have charge of them." Amendments offered by
Mr. Schley of Frederick and Mr. Stockbridge, respectively,
requiring the consent of the " parents or next friend of
the minor," and that masters should be bound to have
their apprentices taught to read and write, were both lost.
The section was divided for the vote, the first part allow-
ing apprenticeship being carried by the vote of 51 yeas
(including 28 majority votes) and 20 nays, and the second
part, giving preference to the former owners, by 45 yeas
(21 majority votes) to 27 nays." On the next day (August
27) the Union men, who were evidently rallying their
forces, introduced and carried by large majorities on a
strict party vote two new sections, the first requiring that
masters should take a stringent oath of allegiance before
negro apprentices were bound to them, and the second
prescribing heavy fines or punishment for those who de-
tained in slavery any persons emancipated by the Constitu-
tion. 8 *. This latter section was incorporated in the new
Constitution, 84 but the former one, as well as Mr. Todd's

n Proc., 311-2. M Proc., 593-8.

81 Proc., 604-7. ** Art. iv, sec. 12.

405] The Maryland Constitution of 1864. 59

proposition, was finally reconsidered and defeated on Sep-
tember 2. The yeas and nays were demanded in the vote
on the main proposition and showed that a number of the
minority were now against it, the cause of this change
being in all likelihood the same as that given by Mr.
Chambers, who now opposed the proposition as " encunv
bered with loyalty oaths." '

From the above results of the action on the slavery and
emancipation questions it can be seen that although the
minority skilfully advocated one point after another, and
tried their best to secure some of the old privileges from
the general ruin that threatened them, they were over-
powered and defeated on every point of importance, and
had only the poor consolation of a vague chance of na-
tional compensation which after all never came to pass.

A second great question involved in the Declaration of
Rights, and one which vitally affected several of the pro-
visions of the Constitution, was that of allegiance to the
United States. The report of the committee contained
the following as Article 4" "the Constitution of the
United States, and the laws made in pursuance thereof,
being the supreme law of the land, every citizen of this
state owes paramount allegiance to the Constitution and
Government of the United States, and is not bound by any
law or ordinance of this state in contravention or subver-
sion thereof."

This declaration, enjoining upon the citizen a proper
allegiance to the Constitution of the United States, which
presupposes allegiance to the Government when constitu-
tionally conducted, thus contained in addition the danger-
ous principle of absolutely denying any original or inherent
rights on the part of the State of Maryland, which would
enable it to make the least opposition to any acts the
National Government might see fit to commit. While the

85 Proc., 689-91; Deb., iii, 1797-1800.

86 Proc., 58. (Article 5 in Constitution as adopted.)

60 The Maryland Constitution of 1864. [40G

tendency of the present day is to cede more and more au-
thority to the National Administration, yet there is cer-
tainly no disposition to take away all inherent power from
the states as such, or vest in the Federal Government all
authority not absolutely guaranteed to the state by the
United. States Constitution. . This last is clearly the result
to which the article tended.

This movement on the part of the majority was the di-
rect outcome of the war as caused by the assertion of
state's rights on the part of the South, and as waged
according to the necessarily radical measures of Mr. Lin-
coln. Though evidently subject to the greatest abuse, it
was in reality an attempt to assert the absolute indivisi-
bility of the Union, and the paramount authority of the
National Government when acting within the letter of the
Constitution.

The members of the minority in the Convention, most
of whom were firm believers in the doctrine of state's
rights as held by the South, and in a large measure of
sovereignty vested in the states as such, in some cases
even went so far as to practically justify the South in its
action on the question. They were naturally much
aroused by this enunciation of paramount allegiance to
the National Government, and were unable to condemn
the article in sufficiently strong terms. 87 The debate on
the article was long and brilliant, consuming a large part
of the time for over two weeks, and was a careful treat-
ment of the history of our country from earliest colonial
times down to the causes of the war, as well as a review of
the growth of justice and freedom from the days of Run-
nymede to the present time. Although the question was
touched upon to some extent during the consideration of
other subjects throughout the entire session of the Con-
vention, Mr. Clarke on June i opened the regular debate

87 A minority report from the committee condemned this article
in addition to the one embodying emancipation. (Proc., 63-4.)

407] The Maryland Constitution of 1864. 61

on the article in a masterly speech of several hours dura-
tion. 88 He began by offering an amendment in part de-
claring " allegiance to the Constitution and Government
of the United States within the limits of the powers con-
ferred by that Constitution," and giving to the State of
Maryland sovereignty in so far as it is not restricted by
the Constitution. 8 " The gist of his argument was that the
states were sovereign as states, but that they had yielded
up a sufficient amount of their sovereignty to the General
Government to deprive them, among other things* of the
power of seceding from the Union, and that the article as
reported specifically deprived the states of that measure of
sovereignty which was inherently theirs. This may be
taken as the average position of the minority on the ques-
tion, for although some, as above stated, went further in
their assertion of state's rights, yet others stopped short
of it, while all protested their personal loyalty to the Na-
tional Constitution.

The position of the majority is so well given by the ar-
ticle itself that there is no necessity of restating it. Mr.
Stirling closed the entire debate on this question with one
of the finest speeches in the Convention,* his aim being to
vindicate the position of the majority, not only by uphold-
ing the doctrine of absolute national sovereignty, but by
stating that the " paramount allegiance " set forth in the
article as reported was merely an old and commonly recog-
nized principle of government restated, perhaps in a novel
form, but given in this way in order to meet the questions
as to its very being which had been raised during the last
few years in consequence of the momentous events that
had happened. The declaration of this principle should
be placed in the " Declaration of Rights " since the relation
of the person to the National Government was one of the
dearest rights pertaining to the individual. The majority
tenaciously held to the article as reported, and would take

"" Deb., i, 273-92. " Proc., 144-5. " Deb., i, 521-32.

62 The Maryland Constitution of 1864. [408

nothing less, for they evidently desired by this action to
strengthen the hands of the President and put Maryland
in the position of officially endorsing his administration. 91
This political consideration should not be forgotten, es-
pecially as the contemporary excitement incident to Mr.
Lincoln's candidacy for a second term may have influ-
enced the Convention. The result was, that Mr. Clarke's
amendment was voted down, and also several others by
means of which the minority attempted to mitigate the
force of the article," and this latter was finally adopted
on June 16 by the party vote of 53 to 32."

The third in importance and last of the new articles in-
corporated in the " Declaration of Rights " was that in-
troduced by Mr. Abbott of Baltimore City on June n, and
adopted without debate on July 7, after a slight change of
phraseology." It declared " That we hold it to be self-
evident that all men are created equally free ; that they are
endowed by their creator with certain unalienable rights,
among which are life, liberty, the enjoyment of the pro-
ceeds of their own labor and the pursuit of happiness/' It
was merely a broad statement of the principle involved in
the article abolishing slavery.

Another very interesting change was that made in Ar-
ticle 2, which declares the " unalienable right " of the people
to " alter, reform or abolish " the form of government
which originates from them. The words contained in the
old Constitution of 1850-1 K which limited this popular
right to the " mode prescribed " in that document were
omitted. This action was not taken on strict party lines,
for although nearly all the members opposing it were of
the minority, yet a number of them rose above the rigid

91 See Proc., 209, for an order introduced by Mr. Hatch, of Bal-
timore City, with this special end in view.

92 Proc., 150-1, 199-201.

93 Proc., 204. (Article 5 in the Constitution.)
Proc., 173, 233-4. (Article I in Constitution.)

95 Declaration of Rights, Article I.

409] The Maryland Constitution of 1864. 63

constructionism so prevalent among the members of this
last-named faction, and voted in the affirmative. 90 The
change was evidently the direct result of an argument
which had been most skilfully used against calling a Con-
vention during the campaign of the preceding spring, 97 and
was based not only on the above-mentioned clause of the
" Declaration of Rights " of the old Constitution, but on
Article n of that instrument which provided that "It
shall be the duty of the Legislature, at its first session
immediately succeeding the returns of every census of the
United States, hereafter taken, to pass a law for ascertain-
ing, at the next general election of Delegates, the sense of
the people of Maryland in regard to the calling a Conven-
tion for altering the Constitution." As we know, the
Legislature of 1861-2 had failed to do this, 98 hence it was
held by some that the succeeding body of 1864 had ex-
ceeded its authority in framing the Convention Bill, and
that the Bill was unconstitutional. The advocates of the
measure had at once answered the argument by taking
their stand on the absolute sovereignty of the people, and
their right of revolution as a last resort, urging that the
acceptance of the Convention Bill at the election was suffi-
cient to make it the supreme law of the land. This was
the line of argument followed during the debate on the
revision question in the Convention, it being stated in addi-
tion that it might with equal ease be proved that the Con-
stitutional Convention of 1850-1 had been revolutionary,
as it had not been called according to the provisions of the
Constitution of 1776."

The other facts of importance which should be men-
tioned in connection with the " Declaration of Rights " as
adopted are, first of all, that Article 7 still confined the
right of suffrage to the free white male citizens. Again,
the general sentiment of the Convention was without re-

96 Proc., 90, 94-6; DeB., i, 133-46, 149-60. " Deb., i, 134, 390.
"See page 13. "Deb., i, 140-1, 150-5.

Ci The Maryland Constitution of 1864. [410

gard to political lines, largely opposed to any poll-tax, 100
so the prohibitory clause was retained in Article 15 with
a slight change of phraseology. 101 Article 22 limited the
declaration against compulsory evidence to criminal cases
thereafter, in order to conform to the laws as it stood in the
Code, by which any party might in any civil case be com-
pelled in a Court of Common Law, as well as in Equity,
to give evidence against himself. Article 27 was changed
to allow forfeiture of estate for treason, a thing heretofore
not allowed in Maryland for any cause. 101 The minority
of course opposed this change, Mr. Chambers in particular
leading in the debate against it, the ground taken being
that it would be an inhuman and unjust treatment of the
innocent wife and children of a man convicted. Mr.
Clarke made an effort to amend the article by having the
forfeiture of estate only continue during the life of the
person convicted, but was unsuccessful, 10 * as the majority
could not leave open this chance for future questioning
of the various confiscations of " rebel " property. Article
31 changed the phraseology in regard to quartering sol-
diers in time of war, by providing that the manner should
be " prescribed by law," thus corresponding literally with
the third amendment to the Constitution of the United
States. The words formerly used had been " as the Leg-
islature may direct." ' The requirement of a test oath of
allegiance both to Maryland and the United States, was
inserted in Article 37, which treated of the tests or quali-
fications required for office. The minority opposed this.
An additional change was made in the same article by
omitting the word " Jews " and allowing all persons, with-

100 Deb., i. 168-80, 190-201, 217-20. Mr. Jones, of Somerset,
favored an income tax (Deb., i, 188-9).
01 Proc., 106-8, 110-4, 123-5.
102 Article 24 in Constitution of 1850-1.

03 Proc., 131, 138-41; Deb., i, 239-47, 249-70.

04 Proc., 158-9; Deb., i, 356-60 (observe the different numbering of
the articles in the report of the committee, etc.).

411] The Maryland Constitution of 1864. 65

out distinction to make a declaration of belief either in the
Christian religion, or in the existence of God, and in a
future state of rewards and punishments. 105 Article 40
added to the provision for the liberty of the press a clause
making a person responsible for the abuse of this right. 106
Article 43 declared the encouragement of a judicious sys-
tem of general education to be among the duties of the
Legislature, and Article 45 prohibited only the Legislature
from altering the Constitution except in the manner pre-
scribed or directed. This left to the people the inalienable
right of changing their form of government and thus con-
formed to Article 2, as modified in the manner stated
above. 107

To sum up, it should be said that the changes in the
" Declaration of Rights," as given above, show first a de-
cided movement toward an increase in the civil liberty of
the individual by the abolition of slavery, the vesting of
final sovereignty in the people, and the broadening of the
religious test in an oath or affirmation. Secondly, there
was a somewhat counter tendency toward strong centrali-
zation of power in the National Government, and also an
entire submission to and approval of the war policy of
President Lincoln.

The Constitution itself, in establishing a form of govern-
ment for the State of Maryland as contrasted with the pre-
vious document of 1850-1, shows a number of interesting
changes, which were in part the immediate results of the
Civil War, and in part caused by a growing spirit of pro-
gress in the state, which was at times reflected in the Con-
vention, where provisions were suggested which would
have been years in advance of the average opinion of the
people. In considering these various changes the order of

00 Proc., 165-6; Deb., i, 371-82.

l(X5 Proc., 167-9, 172-3; Deb., i, 393-400 (articles "39" and "45
[46] combined into Article " 40 " Proc., 434).
10T See pp. 62-63.

66 The Maryland Constitution of 1864. [412

the Constitution will be followed in part, and in part a
grouping by subjects. 101

Article i, on the Elective Franchise, largely followed
the plan of the corresponding article in the preceding Con-
stitution. It also contained one of the best of the new
provisions, that requiring the General Assembly to pro-
vide for an uniform registration of the names of the voters
of the state, a thing as yet unknown in Maryland. This
registration was made the evidence of the qualification of
citizens to vote at all elections. 109 In relation to bribery,
section 5 of the same article added to the former prohibi-
tive provision a clause disfranchising a person guilty of
fraud in procuring for himself or any other person a nomi-
nation for any office. This was the result of a motion by
Mr. Stockbridge, who desired to incorporate in addition
the application of this provision to primary meetings and
nominating conventions, an advanced reform movement
only beginning to be considered at the present day. The
Convention voted it down as impracticable."

The oaths of allegiance for voters and public officials as
contained in this article were perhaps the most unpopular
feature of the Constitution, and did more to cause its re-
luctant acceptance by the state and its final abrogation in
1867 m than any other one thing in connection with it.
They were of course the direct outcome of the war and
only applicable to the conditions arising at that time.
General Schenck's much-discussed order governing the
elections of 1863, the various invasions and raids into

* The entire new Constitution, as adopted, may be found in
Proc., 721-70.

10 *Proc., 434, 513, 686; Deb., iii, 1784, This provision was carried
out by the Legislature of 1865. See Steiner, " Citizenship and
Suffrage in Maryland," pp. 47-8.

110 Proc., 510-1; Deb., ii, 1381-3. Mr. Miller had desired to make
voting compulsory by an article in the " Declaration of Rights,"
Proc., 1 1 1-2.

u The present Constitution of Maryland was formed in that
year.

413] The Maryland Constitution of 1864. 67

Maryland by Southern forces during the last two years,
and the many instances of divided sympathy consequent
upon the position of Maryland as a border state; all these
facts may be considered as exerting a strong influence
toward this radical action on the part of the majority mem-
bers. The report handed in by the four Union members
of the Committee on Elective Franchise m had contained
a test oath as a qualification for office, which was after-
wards amended to make it more stringent. A minority
report handed in by Messrs. Brown of Queen Anne's and
Marbury of Prince George's 113 had contained merely an
oath of allegiance to the Constitution of the United States
and the Constitution and laws of Maryland. Neither re-
port contained a test oath for voters. Mr. Stirling on
August ii offered the amendments which were finally
adopted as section 4, and prescribed the disqualifications
arising under the war, and the additional oath for voters." 4
The provision, which was quite long, forever disfranchised
and prohibited from holding office all those who had at
any time been in armed hostility to the United States or
in any manner " in the service of the so-called Confederate
States of America," who had voluntarily gone South for
that purpose, had given aid, comfort, countenance or sup-
port to the enemies of the United States or adhered to
them by contributing to them, or " unlawfully sending
within the lines of such enemies money or goods or letters
or information," or " disloyally held communication with
them." In addition there were included under the ban all
those who had " advised any person to enter the service
of the said enemies, or aided any person so to enter or who
[had] by any open word or deed declared [their] adhesion
to the cause of the enemies of the United States, or [their]
desire for the triumph of said enemies over the arms of the
United States." These disqualifications could be removed
only by service in the military forces of the Union,

112 Proc., 431-3- m Proc., 449-51. " 4 Proc., 463-8.

68 The Maryland Constitution of 1864. [414

or by an act of the General Assembly passed by a two-
thirds vote of all the members elected to each house, and
restoring the offender to his full rights of citizenship.
The " Officers of Registration " and " Judges of Election "
were " carefully to exclude from voting, or being regis-
tered, all persons so as above disqualified." The hands of
these officials were strengthened by the additional clause
that "the taking of such oath shall not be deemed con-
clusive evidence of the right of such person to vote," thus
leaving to them individually the final judgment in the
matter. In order to cover the first election under the
Constitution and the subsequent registration for which the
Legislature was to provide, the above-given oath was re-
quired of all voters and the Judges of Election must state
in the returns that this provision had been complied with." 5
Mr. Berry of Prince George's attempted to insert a clause
limiting the imposition of the oath to cases where there
was a challenge " by a legally qualified voter, resident of
said district or ward in which the vote is offered," but it
was voted down 12 yeas to 47 nays. 119 A similar fate had
befallen the attempt of Mr. Davis of Charles to declare in
the first section of the same article that " all persons
[should] be considered loyal who [had] not been con-
victed in some Court of Law of disloyalty." UT

Mr. Stirling also offered the provision which was adopt-
ed, with several amendments, and contained an equally
stringent oath of office. 1 " It required of " every person
elected or appointed " to any office under the Constitution
or laws pursuant thereto, that he should not only swear
allegiance to the Constitution, Laws, and Government of
the United States " as the supreme law of the land, any
law or ordinance of this or any state, to the contrary, not-
withstanding," and that he had not used any unfair meas-

115 Mr. Stirling distinctly stated this object. Deb., ii, 1272.

118 Proc., 466-7. See Nelson, " Baltimore," p. 573.

UT Proc., 462-3.

* Proc., 472-4, 505-8 (Section 7 in Constitution).

415] The Maryland Constitution of 1864. 69

ures, of bribery or illegal voting, but in addition that he
had " never directly or indirectly by word, act, or deed,
given any aid, comfort or encouragement to those in re-
bellion against the United States or lawful authorities, there-
of," but that he had been truly and loyally on the Union
side. Further, that he would to the best of his abilities
protect and defend the Union and " at all times discounte-
nance and oppose all political combinations having for
their object such dissolution or destruction." Mr. Scott
of Cecil had offered an amendment to the original report
requiring the officer-elect to swear among other extrava-
gant things that he had " uniformly and at all times de-
nounced [those in rebellion] not only as rebels against
and traitors to their country, but as enemies of the hu-
man race " ! However, Mr. Stirling's amendment was the
one which superseded this latter."' An additional pro-
vision offered by Mr. Stirling was adopted, which required
all those in office under the preceding Constitution to take
the above oath of office within thirty days after the new
instrument had gone into effect. The office should be ipso
facto vacant if the incumbent should fail to fulfill this con-
dition. 110

As was to be expected, the minority stoutly opposed
these oaths or tests, declaring them to be especially di-
rected against the large number of true Union men who
opposed the " usurpations " of the National Government. 121
An unsuccessful series of bitter and sarcastic amendments
was offered by Mr. Jones of Somerset putting the observ-
ance of the " Ten Commandments " in the test oath, and
the affirmation that the person had " faithfully supported
the Constitution of the United States against all violations
of the same whether in the Northern or Southern States,
or in any department of the Government of the United
States, civil or military." 122 A more serious attempt to

119 Proc., 422-4, 505-8. " Proc., 512-3.

121 Deb., ii, 1334- 122 Proc., 449-5OO.

70 The Maryland Constitution of 1864. [416

provide that the prescribed oaths be in force only till the
end of the war was voted down, 47 to 23."*

The debate on all these questions was more bitter than
at any other time during the Convention, with perhaps the
exception of the consideration of the soldiers' vote and of
the mode of submitting the new Constitution to the
people." 4 The minority held that the oaths largely tended
to continue after the war had ceased the conditions co-ex-
isting with it, and would go far to prevent the subsequent
reconciliation necessary to the peace and prosperity of a
reunited country. They also rightfully objected that it
gave far too much power to the Judges of Election, and
offered every opportunity for unfairness and abuse. 118

Another strong point was that it was eminently im-
proper to compel the entire support of the National Gov-
ernment, a requirement especially irritating to many who
held that the coercion of the South was in violation of the
Constitution of the United States.""

The majority held that there was nothing unusual in
the oaths when the circumstances in which the state was
placed were considered, and that no one could faithfully,
zealously, and honestly serve the State of Maryland as an
officer, who could not undergo the prescribed tests." 7

We of this day, while admitting the force of the argu-
ments of both sides in the Convention, must necessarily
take a middle course in forming our judgment, and con-
clude that the majority were right in providing test oaths
of some sort as a war measure, but that they made a great
mistake in the extent of their requirements and the method
of enforcing them.

Other points of interest to be noted in connection with
the treatment of the franchise are that it was again in this
connection restricted to white male citizens, and that there
were unsuccessful attempts to allow ex-convicts to vote

^Proc., 511-2. " 4 Deb., ii, 1262-89, 1299-1303. 1330-81.

Deb., ii, 1266, 1335. " Deb., ii, 1359. m Deb, ii, 1358-9.

417] The Maryland Constitution of 1864. 71

after a certain period of good behavior, or consequent
upon legislative action. 128 The provision which required
the General Assembly to provide by law for taking the
votes of soldiers in the army of the United States serving
in the field 129 will be considered later, as the main oppo-
sition centered around this entirely new provision when it
was applied to the vote on the ratification of the Consti-
tution. 180

The new instrument showed a number of changes in
regard to state officials, and the positions they occupied.
In the Executive Department the old " Gubernatorial Dis-
tricts," from each of which the Governor was chosen in
turn," 1 were abolished, thus doing away with a useless and
cumbersome institution. The salary of the chief executive
was raised from $3600 to $4000."* A proposal to give him
the veto power was speedily tabled by the Convention,
which considered this an unnecessary departure from the
custom of the past. 1 * As the judiciary and most of the
other state officers were to be elected his appointing power
was small.

The office of Lieutenant-Governor was created an en-
tirely new departure for the State of Maryland. The same
qualifications and same manner and time of election were
prescribed as in the case of the Governor. This new
officer was to preside over the Senate with the right of a
casting vote in case of a tie, and was also to succeed to the
office of the Executive, in case of the " death, resignation,
removal from the state, or other disqualification " of the
latter. He was to receive no salary but the same compensa-
tion as that allowed the Speaker of the House of Delegates
during the sessions of the General Assembly. 184 The creation
of this office was an idea which originated in the Conven-

* Proc., 474-5. 12> Art. i, sec. 2. uo See pages 88-90.

181 There were three districts Eastern Shore, Western Shore,
and western part of the state. See Cons. 1850-1, Art. ii, sec. 5.
132 Article ii, section 22. m Deb., ii, 898. m Art. ii, sec. 6-10.

72 The Maryland Constitution of 1864. [418

tion, and had previously been little discussed in the State,
if at all. 1 * 8 The minority members of the Committee on
the Executive Department had brought in a report against
this new office 18 and although Mr. Smith of Carroll and a
few others of the majority members joined with the other
political faction in opposing the office as unnecessary, the
measure passed without much difficulty or delay. 117 Those
favoring it brought forth as the reasons for their action the
fact that the provision gave an additional popular feature
to the Constitution by making the people doubly secure of
the choice of their chief executive, and brought the Gov-
ernment of Maryland in line with those of a majority of the
states of the Union. 1 " A move to abolish the office of
Secretary of State and combine its duties with those of
the Lieutenant-Governor was quickly defeated. 1 "

Another new state office created was that of Attorney-
General, which also was to a great extent an idea of the
Convention members. 140 This office had existed before
1851, but was abolished by the Constitution of that year. 141
The reason for that action, as given by Judge Chambers, 141
who had been a member of the Convention which framed
the instrument, was not from any belief that the office was
unnecessary, but purely from personal considerations, hav-
ing relation to an individual who it was supposed was
going to obtain the office. There was now practically no
opposition in the Convention to its re-establishment, and
it was provided 14i that the Attorney-General be elected by
the people for a term of four years, that to be eligible he
must have resided and practiced law in the state for at
least seven years next preceding his election, and must
perform the usual duties required of such an officer. The
salary was $2500 a year. There was no change of any

m Authority of Mr. Joseph M. Gushing. M Proc., 448-9.

187 Proc., 492-3. 1W Deb., ii, 1317-9. "* Proc., 493.

140 Authority of Mr. Joseph M. Gushing.

141 Art. 3, section 32. 10 Deb., iii, 1463. ia Art. v, sees. 1-6.

419] The Maryland Constitution of 1864. 73

consequence in regard to the provisions for State's Attor-
neys. 144 In regard to the Treasury Department 143 it is
hardly necessary to say more than that the provisions of
the old Constitution were closely followed with only a
few minor changes in phraseology. As before, the Comp-
troller was to be elected by popular vote for a term of two
years, and at each session of the Legislature the State
Treasurer was to be chosen by joint ballot, to hold his
office for a like term. The salary of both officers remained
at $2500 a year.

The Commissioner of the Land Office was now to re-
ceive the fixed salary of $2000 a year, and pay into the
Treasury all fees received, instead of retaining them as his
compensation according to the former provision. 140 There
was some question as to the desirability of abolishing this
office, but it was finally retained as a necessary part of
the administration. 147 The salary of the State Librarian
was increased from $1000 to $1500, and the Legislature
was to pass no law whereby he was to receive additional
compensation. 148 This action was intended to give that
officer an adequate salary and abolish extra Legislative
appropriations for certain duties performed. 14 * The " Board
of Public Works " was entirely reorganized. The old
provision for electing four " Commissioners " from a like
number of districts into which the state was divided 18 was
abolished, and the board now consisted of the Governor,
the Comptroller and the Treasurer, who were to receive
no additional compensation for the performance of their
duties in this connection. This board superintended the
interests of the state in internal improvement. 181

The other state officials will be mentioned in connection
with the more important departments of administration
with which they were connected.

144 Art. v, sees. 7-11. 145 Art. vi. 14S Art. vii, sec. 3.

47 Deb., ii, 1090-4. 148 Art. viii, sec. 4. 148 Deb., ii, 1101-9.
150 Cons. 1850-1, Art. vii, sees. 1-3. 151 Art. vii, sees. 1-2.

74: The Maryland Constitution of 1864. [420

The article dealing with the Legislative Department
(III) showed a number of changes, most of them in the
line of improvement. In this connection, the most im-
portant question of all was that of basis of representation,
concerning which there had been much complaint through-
out the state, especially on the part of Baltimore City and
the northern and western counties. In 1851 the prin-
ciple of representation according to population had been
adopted for the first time, 152 but with the restriction that
Baltimore City should have only four more members than
the largest county. At the same time the entire popula-
tion, white and black, slave and free, was made the basis.
The above-mentioned parts of the state justly condemned
all this, which gave to the southern, slave-holding counties
an unfair measure of power and the practical domination
of the state."" As can be well imagined, the majority
members of the Convention, particularly those from Balti-
more City, were determined to change this system en-
tirely. The minority, coming altogether from the more-
favored section of the state, naturally fought the move
with all their might, particularly as they would be helped
in some measure by the county members of the majority,
who were evidently unwilling to have the basis placed en-
tirely on population, for the reason that in this case Balti-
more City would be given too much power for their liking.
Under these circumstances, the compromise was effected
according to which the basis of population was applied by
an artificial rule, limiting Baltimore City and the larger
counties, but with the result of allowing the city a larger
representation than heretofore. The entire majority, how-
ever, joined together in a shrewd political move and in-
creased the reduction of the political power of the southern

1M A constitutional amendment in 1837 had only partially incor-
porated this principle.

151 See Nelson, " Baltimore," p. 157, for a quotation on this sub-
ject from a speech of Hon. Henry Winter Davis; also see news-
papers of 1863-4.

421] The Maryland Constitution of 1864. 75

counties consequent upon the above, by making the white
population of the state the exclusive basis of representa-
tion in the House of Delegates.

Early in the session of the Convention Mr. Clarke offer-
ed resolutions to the effect that it was " inexpedient ....
to adopt a system of representation based exclusively upon
population," and recommending instead that this principle
be applied to the counties, and then four more delegates
be given to Baltimore City than would fall to the largest
county. A plan of apportionment also submitted by Mr.
Clarke divided the county population by seven thousand,
giving Baltimore County, the most populous, a represen-
tation of eight, and consequently twelve to the city, the
entire number of delegates to be eighty. Failing this
plan, if the whole state was to be represented according to
population, districts were to be substituted in Baltimore
City. These resolutions were referred to the Committee
on Representation. 154 Mr. Belt submitted the proposition
that the entire state be divided into electoral districts, and
this was the ground on which the minority took its stand. 1 "

Mr. Abbott of Baltimore City on May 27 made the re-
port of the six Union members of the Committee on Rep-
resentation, which furnished the foundation of the com-
promise plan that was finally adopted as above stated. 1 "
The three Democratic members handed in a minority re-
port embodying Mr. Clarke's plan of giving the counties
representation according to population, and Baltimore
City four more delegates than the largest county." 1 This
was voted down by the party vote of 26 yeas to 46 nays. 158

The minority, as already stated, now skilfully took its
stand on the electoral district plan, which would tend to
slightly diminish the overwhelming party influence of the
larger counties and Baltimore City in particular, by afford-
ing opportunity for the minor political party (at this time

26-7, 31-3- l5I Proc., 88. IM Proc., 120-1.

'"Proc., 122-3. ^Proc., 351.

76 The Maryland Constitution of 1864. [422

of course the Democratic) to secure the election of repre-
sentatives from those districts in which it might be strong,
whereas it would perhaps be defeated entirely if the vote
of the whole county or city were thrown together. They
urged as their main argument in favor of this method that
every voter throughout the state would thus cast his ballot
for one delegate, while under the other plan the citizen in
the smaller counties might vote for only one or two dele-
gates, and the citizen in Baltimore City or a larger county
for eight or ten, or perhaps more. This second plan was
lost, 14 " and the minority now turned their attention to les-
sening the representation of Baltimore City, and increas-
ing that of the smaller counties as much as possible.

As finally adopted, 1 " the representation was according
to the following plan: 161 Baltimore was divided into three
legislative districts, and each one of these districts, 1 " as
well as each county of the state, was to be represented by
one Senator, elected by the people for the term of four
years, subject to a classification by which the election of
one-half of the entire number should occur every two
years. The apportionment of the Delegates was as fol-
lows: for every five thousand persons or fractional part
over one-half, one Delegate to be chosen until the number
for each county and legislative district of Baltimore City
should reach five, above that number one delegate for
every twenty thousand persons or larger fractional part
thereof, and after this, one for every eighty thousand per-
sons or larger fractional part. Until the next census was
taken the representation was to be as specifically provided
in the Constitution, which gave Baltimore City altogether
eighteen delegates, 18 " and sixty-two delegates to the coun-
ties. A sharp struggle occurred on the representation of

" Proc., 352, 360-1. Proc., 352, 362, 639-42.

181 Art. iii, sees. 2-4, 7.

1(0 Baltimore had hitherto only one senator and ten delegates.
The committee report had provided twenty-one delegates for the
city (Proc., 120-1). 1<B See note, preceding page.

423] The Maryland Constitution of 1864. 77

Baltimore and Kent counties. The latter county fell only
153 short of the necessary population required for two
delegates, 164 and the former claimed an additional delegate
for the reason that its population of 46,722 placed it within
the arbitrary twenty-thousand rule, so that it had only six
delegates, one more than Allegany for instance, which had
19,507 population, less than half of that of Baltimore
County. It was finally decided near the close of the Con-
vention to give Kent the extra delegate, but Baltimore
County was held down to the letter of the rule adopted. 105

It is interesting to note that throughout the considera-
tion of this question the members of the majority made
comparatively few speeches, and even then made no seri-
ous attempt to answer the extensive arguments brought
forth by the minority. 1 " 8 These latter took the ground
that their opponents were attempting to deprive the south-
ern counties of their proper political influence, 187 to give
Baltimore City the position of three counties, 188 and that
as soon as slavery was abolished even a three-fifths rule
held no longer, but the whole population became the joint
basis of apportionment. 10 " It was all in vain, however,
for now they only succeeded in procuring the additional
delegate for Kent. The majority were evidently not going
to lose this opportunity of settling old scores, and in addi-
tion might have urged the old excuse that it was neces-
sary to strengthen the supporters of the National Adminis-
tration in Maryland by weakening the power of their op-
ponents.

The article on the Legislative Department contained
numerous other changes, mostly in the direction of lim-
iting the power of the General Assembly to act in certain
cases. 170 Taking the most important in the order in which

184 Deb., iii, 1658. m Proc., 639-42; Deb., iii, 1655-76.

89 Deb., ii, 1032-59, 1060-78. 18T Deb., ii, 1034.

88 Deb., ii, 1038. l69 Deb., ii, 1041.

170 Might this not have been a result of the struggle over the
"Frederick" Legislature of 1861?

78 The Maryland Constitution of 1864. [424

they occur, it will first of all be noticed that the old pro-
vision prohibiting clergymen from accepting seats in the
legislature was omitted, although Judge Chambers
strongly protested against this action on conservative
grounds." 1

The regular sessions of the General Assembly had here-
tofore closed on the loth of March, now they were unlim-
ited, though special sessions could only continue thirty
days. The former pay of $4 per day was raised to $5 for
all sessions, but no member could receive more than $400
for the regular session. This was of course a distinct im-
provement on the old provision.

A number of the restrictions mentioned above were
contained in a section (32) which prohibited the Legisla-
ture from passing local or special laws in fourteen different
cases, of which those relating to assessment and collec-
tion of taxes, to interest on money, those providing for
the sale of real estate belonging to minors, giving effect
to informal or invalid deeds or wills, those granting di-
vorces, and those " establishing, locating or affecting the
construction of roads, and the repairing or building of
bridges " were the most important. Also the provisions
were continued which prohibited the giving of the credit
of the state to aid in works of internal improvement, and
that unsecured debts were not to be contracted, except on
the authority of the General Assembly to meet deficiencies
to the extent of $50,000, or to any amount necessary for
the defense of the state.

It was provided that laws were to be passed requiring
the stringent oath of allegiance to be taken by the " presi-
dent, directors, trustees, or agents of corporations created
or authorized by the laws of this state, teachers or super-
intendents of public schools, colleges, or other institutions
of learning; attorneys-at-law, jurors, and such other per-
sons as the General Assembly shall from time to time pre-
scribe." 1 "

m Deb., ii, 790-6. 17a Art. iii, sec. 47.

425] The Maryland Constitution of 1864. 79

In regard to internal improvements it should be noted
that there was a strong sentiment in favor of selling the
state's interest in them. The report of the Committee on
the Legislative Department had contained a section pro-
viding that the General Assembly should take the neces-
sary steps to dispose of the above, and use the proceeds
for the payment of the public debt of the state, any sur-
plus to be held as a permanent fund for the support of
education. 178 When this section came up for consideration
in the Convention, the variety of plans and ideas presented
in regard to it, and the utter lack of any definite policy or
party lines among the members, show that the subject was
largely a new one. It had been raised by several indi-
viduals who brought before the committee the argument
that arrangements might be made by which the Chesa-
peake and Ohio Canal, the unproductive state stock in
which was the special object of attack, might be leased to
the preferred creditors, many of them citizens of Mont-
gomery, Frederick, Washington and Allegany counties,
who as citizens were held to have a double interest, both
in the usefulness of that particular work, and in its being
remunerative to the state." 4

The question of the sale seemed to come as a surprise
to the Convention, and though a large number expressed
themselves as favorable to the move, yet so many plans
and amendments of various sorts were offered that the
subject became involved in a veritable sea of confusion.
The state owned large amounts of both productive and un-
productive stocks, and the sentiment was entirely divided
as to whether certain parts or all of these should be dis-
posed of. The great fear seemed to be, that the Balti-
more and Ohio Railroad would gain control of the Chesa-
peake and Ohio Canal, and use it to discriminate in rates
against the western part of the state, and also that the
sale would offer a rich field for bribery and political job-

178 Proc., 193. " Deb., ii, 815.

80 The Maryland Constitution of 1864. [426

bing. The uncertain state of the " money market " in
time of war was a potent reason urged against any action
in the matter. 178 The whole question was finally referred
to a special committee of nine on July 27, with instructions
to report two days later. 17 * A majority of six of the com-
mittee reported in favor of the sale of certain interests
according to a given method, and the reference of the sub-
ject of the sale of the remainder to a popular vote. A
minority of four members of the committee reported
against any provision for the sale of public works, urging
that at present it was inexpedient, as it would tend to
dissatisfy a large part of the people, and as it was doubtful
if any plan could command a majority of the votes of the
Convention. A number of the members had come to this
more conservative view, owing to the lack of any definite
plan as yet, though Mr. Thomas of Baltimore City, who
came originally from Allegany county, vigorously opposed
the move as detrimental to the western part of the state. 1 "
After much discussion and seemingly endless amend-
ments, 178 provisions were finally adopted 11 * which author-
ized the Governor, Comptroller and State Treasurer con-
jointly, or any two of them, to exchange the state's inter-
est in the Baltimore and Ohio Railroad " for an equal
amount of bonds or registered debt now owing by the
state/' and also to sell the interests in the other works of
internal improvement or banking corporations, but subject
to such regulations and conditions as the General As-
sembly might prescribe. There were two provisos to the
above, the first reserving from sale the interest of the
state in the Washington Branch of the Baltimore and Ohio
Railroad, and the second requiring a ratification by the
Legislature of the sale of the interests in the Chesapeake

175 Deb., ii, 814-5, 903, 908.

111 Proc., 346-9. l77 Deb., ii, 966-70.

17> Proc., 298-304, 315-6, 321-2, 340-9, 391-5, 398-404: Deb., ii,
814-9, 872-3, 809-913, 962-74, 1110-25. 1145-53-

79 Yeas 39, nays 25 (Proc., 402-3). See Art. iii, sees. 52-3.

427] The Maryland Constitution of 1864. 81

and Ohio Canal, the Chesapeake and Delaware Canal, and
the Susquehanna and Tidewater Canal Companies. In ad-
dition, the Legislature was to provide, before the Chesa-
peake and Ohio Canal could be sold, such laws as should
be necessary to authorize the counties of Allegany, Wash-
ington, Frederick and Montgomery or any one of them
" to create a debt by the issue of bonds or otherwise, so
as to enable them, or any of them, to become the pur-
chasers of said interest." All party lines were entirely ob-
literated during the consideration of the above, and the
members voted as individuals.

Another section which was incorporated in this same
Legislative Article 18 gave the General Assembly " power
to accept the cession of any territory contiguous to this
state from the states of Virginia and West Virginia, or
from the United States, with the consent of Congress, and
of the inhabitants of such ceded territory," and further
empowered the Legislature to enact the necessary laws to
divide such ceded land into counties, and otherwise make
it an integral part of the state. It seems that after West
Virginia had seceded from Virginia, there was a widespread
belief in Maryland that perhaps portions of this new state
or even the whole of it might be induced to consolidate
with Maryland. Covetous eyes had also been cast on
Loudoun County, Virginia, and also on the Eastern Shore
of that state. The provision was in fond anticipation of
events which never occurred, but was sufficient to call forth
vigorous, and, as usual, vain opposition on the part of the
minority, who " protested against the enormity which had
been committed in the attempted and pretended erection of
this State of West Virginia out of the limits of the State of
Virginia." The debate was not of much importance how-
ever, and the usual party vote soon carried the provision
through. 181

In concluding the discussion of the various provisions

180 Section 48. 181 Proc., 133, 194, 209; Deb., ii, 866-8, 873-6.
29

82 The Maryland Constitution of 1864. [428

incorporated in the article on the Legislative Department,
it is interesting to note that during its consideration in
the Convention two movements developed which, though
unsuccessful, show that certain members were far in ad-
vance of the thought of that day in their views on mone-
tary questions. One movement was an attack on state
banks led by Mr. Gushing of Baltimore City, one of the
most progressive members of the Convention, and the
other an effort to abolish the rigid restriction of the usury
laws. Of this latter, Mr. Belt of Prince George's was the
leading advocate.

Mr. Gushing desired to have the old provision, which
provided for the limited liability of stockholders, inspec-
tion of banks, etc., 1 "* so amended as to read " The Gen-
eral Assembly shall grant no charter for banking purposes,
or renew any banking corporation now in existence." He
stated that he desired the question of currency and note
issues to be fairly met, and favored the support by Mary-
land of Secretary of the Treasury Chase's National Bank
plan, which provided for much more uniformity in the
banking institutions of the country and in their note issues.
It should be noticed that this was an anticipation, by at
least a year, of the action of the Federal Government
which laid the prohibitory tax of ten per cent on the note
issues of state banks, and drove so many of the latter to
reincorporation under national laws. Mr. Cushing's plan
received little support, and was rather treated with indif-
ference, so that gentleman withdrew his motion. 1 * 8

Early in the session, on motion of Mr. Belt, a special
committee of five was appointed to consider and report
upon interest and usury laws. 1 ** This committee reported
in favor of a provision fixing the legal rate of interest at
six per centum per annum, except in cases where a differ-
ent rate might be agreed upon between contracting par-

183 Art. iii, sec. 45 (Cons, of 1850-1).

181 Deb., ii, 835-45. 1M Proc., 18.

429] The Maryland Constitution of 1864. 83

ties, the rate agreed on or contracted for being recover-
able in all cases of private contract. 183

The rate of interest prescribed in the old Constitution
was six per centum, 1 * 1 and the effort of Mr. Belt and the
more progressive members of the Convention who sup-
ported him without regard to party, was to have money
treated like any other commodity subject to the market
price. A practical turn was given to the argument by the
statement that the New York rate of seven per centum
was drawing from Maryland its available capital, and that
the provision reported would of course tend to remedy
this. Mr. Belt was ably seconded by Mr. Cushing, Mr.
Negley and others, party lines being again disregarded,
but Judge Chambers, who was usually ultra-conservative,
Mr. Sands of Howard, and numerous others opposed the
provision with the old arguments of " protection of the
laboring man," the necessity of " restraining the appetite
of the money-lender," and further reasons of the like kind.
Mr. Belt delayed final action for some time in the hope
that he might obtain from the people, especially from the
business men of Baltimore, petitions strong enough to in-
fluence sufficient votes in the Convention to carry his
measure through, 1 * 7 but it was all to no purpose. He was
rewarded by only one petition, that from the Baltimore
Corn and Flour Exchange, 188 and the old restriction was
reenacted. Although by a further effort he succeeded in
having this action reconsidered two days before the Con-
vention adjourned, the conservative sentiment was again
too strong for him, and the result was exactly the same as
before. 18 "

Another progressive change of an entirely different
character which was advocated, and which suffered a like

185 Proc., 520-1. 1M Cons. 1850-1, Art. iii, sec. 49.

187 Authority of Mr. Joseph M. Cushing. l88 Deb., iii, 1685.
189 Proc., 693-700. See also Deb., iii, 1476-81, 1482-1509, 1811-26;
Frederick " Examiner," Aug. 31, 1864.

84 The Maryland Constitution of 1864. [430

fate, was the strong effort to provide for an appointed ju-
diciary. Mr. Stockbridge was the leading advocate of this
plan, and the Judiciary Committee, of which he was the
chairman, reported a system in conformity with these
ideas. 1 " He was supported in this move by the more pro-
gressive members of both sides, but the test vote, which
was taken on the question after very little debate, showed
a vote of 51 to 19 in favor of an elective system, 191 as had
been provided in the Constitution of 1850-1. The old ar-
guments of right of choice of the people, and too much
power given to the Governor if he was allowed to appoint
the judiciary, proved too strong for Mr. Stockbridge and
his supporters. 1 ".

There had been some complaint in the state that the
courts did not sufficiently expedite business, 1 " and in order
to relieve this and provide for speedy justice in all cases,
the numbers of courts and Judges were generally in-
creased, and their jurisdiction was more clearly defined.
A decided improvement was introduced by raising the sal-
aries of Judges, though not to the extent that the commit-
tee report had provided. The term of office was increased
from ten to fifteen years. Numerous minor changes were
introduced, but they are largely of legal or professional
interest, and hence out of the province of this work. 1 * 4 It
should be mentioned however, that provision was made for
all the Judges then in office to serve out the terms for
which they had been elected under the old Constitution.

The minor legal offices showed some change, as the
Justices of the Peace were now appointed by the Gover-
nor, and the Constables by the County Commissioners and
by the Mayor and City Council of Baltimore. These offi-
cers were formerly elected by the people. Also, the cum-
bersome system of electing two Sheriffs, one of whom

Proc., 415-23. 1M Proc., 514-5. 1W Deb., iii, 1385-93-

See Frederick " Examiner," July 6, 1864.
See Article iv of the Constitution as adopted.

431] The Maryland Constitution of 1864. 85

was to serve only in case of the death or disqualification of
the other, 1 " 9 was done away with, and the more common
sense plan substituted by which only one Sheriff was to
be elected, and the Governor by appointment to fill any
vacancies.

We now come to an article which was one of the great-
est merits of the Constitution. It was entirely new, and
provided for a state system of education. For years be-
fore this time numerous attempts had been made at the
various sessions of the Legislature to inaugurate some
sort of a general educational system, but for one reason
or another these attempts had always resulted in failure.
The sentiment of the members of the Convention was
practically a unit in favor of provisions of this character,
and they were backed in this by a large majority of the
people of the state. Mr. Cushing of Baltimore City, chair-
man of the Committee on Education, submitted the unani-
mous report of that committee, 1 * 8 which was finally adopted
with changes mostly of a minor character. In its final
form it provided as follows: 1 * 1 within thirty days after the
ratification of the Constitution by the people, the Gover-
nor was to appoint, subject to the confirmation of the
Senate at its first session thereafter, a State Superintendent
of Public Instruction, the term of office to be four years,
and the salary $2500 a year, with certain sums for travel-
ling and incidental expenses which were to be fixed by the
General Assembly.

This officer was to report to the General Assembly
within thirty days after the commencement of its first ses-
sion under the new Constitution, an uniform system of
free Public Schools. He was also to perform such other
duties pertaining to his office as should from time to time
be prescribed by law. The Governor of the State, the
Lieutenant-Governor, the Speaker of the House of Dele-

196 Constitution of 1850-1, Art. iv, sec. 20.

194 Proc., 372-3. Art. viii.

86 The Maryland Constitution of 1864. [432

gates, and the Superintendent of Public Instruction,
were to form a State Board of Education, the duties
of which were to be prescribed by the General As-
sembly. There were to be School Commissioners in each
county to be appointed by the State Board for a term of
four years, to the number deemed necessary by the State
Superintendent. The General Assembly at its first ses-
sion under the new Constitution, was to provide a uni-
form system of schools, by which a free school was to be
kept open in each school district for at least six months
in each year. In case it failed to do this, the system re-
ported by the State Superintendent was to become law,
subject to the provisions of the Constitution and to future
alteration by the General Assembly. At each regular ses-
sion of the Legislature, an annual tax of ten cents on the
hundred dollars was to be levied throughout the state, the
proceeds of which were to be distributed among the coun-
ties and the city of Baltimore in proportion to their re-
spective population between the ages of five and twenty
years. No additional local taxes were to be levied without
the consent of the people affected. Further, there was to
be an additional annual tax of five cents on the hundred
dollars, the proceeds of which were to be invested until a
permanent School Fund of six million dollars was formed,
this Fund to remain inviolate, and the annual interest of
it disbursed for educational purposes only. 1 * As soon as
this Fund was formed, the ten cent tax might be discon-
tinued in whole or in part.

The Committee on Education had in mind two men for
the position of State Superintendent of Public Instruction
Libertus Van Bokkelen of Baltimore County and Wil-
liam H. Farquhar of Montgomery County, and it was pri-
vately agreed with Governor Bradford that he was to ap-
point either one of these men. The School Fund idea

198 For school funds prior to 1865 see report of House Committee,
House Journal, 1864, pp. 92-3.

433] The Maryland Constitution of 1864. 87

was taken from the school law of the state of Massachu-
setts, which had a sinking fund, and the remainder of the
report was elaborated after a consideration of all the
various state school laws. 199 The report was finally adopt-
ed without much difficulty, although there was much dis-
cussion of the amount of tax to be levied, and the amount
of salary of the State Superintendent. Several members
also questioned the legality of the provision providing that
the system reported to the Legislature should go into
effect in case of the failure of that body to act in the mat-
ter, but Mr. Gushing and M. Stirling answered this by
affirming the sovereign power to provide what it pleased,
which was given to the Convention by the people. 200 . Sev-
eral of the minority members attempted, in a most narrow
minded spirit, to prohibit the application of any part of the
School Fund toward educating the free negro population,
but were overwhelmingly defeated. 201

As regards the organic law embodied in the Constitu-
tion, the only important facts which remain to be noted
are first, that it was provided that the Legislature might
under certain conditions organize new counties, and
second, townships were substituted for election districts
as the smallest unit of local government, their powers to
be prescribed by the Legislature. 202 Mr. Stockbridge seems
to have been largely responsible for this change, his desire
being to introduce into Maryland, if possible, the New
England system of " Town Meetings." J Third and last,
three methods of amending the Constitution were pro-
vided, 10 * that is to say amendments might be submitted
to the people after three-fifths of both houses of the Gen-
eral Assembly had passed them; a convention might be
called by a two-thirds vote of each house if the people ap-
proved it at the polls; and finally, in the year 1882 and in

188 Authority of Mr. Gushing. Mr. Van Bokkelen was appointed
on November 12, 1864.

800 Deb., ii, 1201-36, 1241-50. m Proc., 453-6.

203 Art. x. "'Proc., 33; Deb., i, 65. ^ Art. xi.

88 The Maryland Constitution of 1864. [434

every twentieth year thereafter, the question of calling a
Convention was to be submitted to the people. Thus we
see that the slow conservative methods provided in the
old Constitution were done away with, and the final right
of the people to change their mode of government when-
ever it pleased them so to do, was fully recognized.

It should be said, to sum up at this point, that as far as
the organic law was concerned, the new Constitution was
a decided advance toward modern methods and systems of
government, and showed distinct results of the evident
wish on the part of the Convention, to have the Consti-
tution of Maryland conform, as far as possible, to the best
features embodied in the Constitutions of the other states
of the Union.**

We now come to a most unpopular feature of the Con-
stitution, which contributed largely to the intense opposi-
tion that was aroused against it, and which caused it to be
ratified only by a very narrow majority. This was, the
method and regulations under which it was to be submitted
to the people for their ratification.

As prescribed by the new Constitution,*" the Governor
within five days after the adjournment of the Convention
was to issue a proclamation, calling for an election to be
held in the city of Baltimore on October 12, 1864, and in
the counties of the state on October i2th and I3th. At
this election the vote was to be by ballot, and the question
to be decided was the ratification or rejection of the Con-
stitution. But it was further provided, that the test oath
prescribed in the Constitution for all future elections after
the Constitution should be adopted, was to be required of
all voters in the election on the ratification of that instru-
ment itself. Again, we have seen that the article on the
Elective Franchise required*" the General Assembly to
"provide by law for taking the votes of soldiers in the
army of the United States serving in the field." In order

808 See Deb., i, 360, 394-5; ", IO34-5, 1056, 1267, 1317-8, etc.
""Art. xii, sees. 8-10. *" Art. i, sec. 2. See page 71.

435] The Maryland Constitution of 1864. 89

not to lose this vote in the ratification of the Constitution
and in the regular national and state elections of Novem-
ber, 1864, special provisions were inserted 208 prescribing
rules and regulations for the soldiers' vote, which were
to remain in force till the Legislature should provide by
law, as required above, some other mode of taking the
same. All returns of the vote were to be made to the
Governor, who was made sole judge of their correctness,
and whether or not they were cast according to the pro-
visions of the new Constitution.

Naturally the minority hotly objected to these provi-
sions, being opposed to this method of virtually putting
the Constitution into operation before it was adopted by
thus prescribing the mode of voting upon itself. The
majority answered that the people in their sovereign ca-
pacity had by the election of the previous April made the
Convention Bill the supreme law of the land, and that in
this matter the Convention would be acting according to
the provision of that instrument that the new Constitution
" should be submitted to the legal and qualified voters of
the State, for their adoption or rejection, at such time, in
such manner, and subject to such rules and regulations" as
the Convention might prescribe. The majority further
claimed that the test oath only required the same qualifi-
cations as those prescribed by the Convention Bill in the
clause following the above, which provided that the " pro-
visions hereinbefore contained for the qualification of
voters," etc., should be " applicable to the election to be
held under this section." The minority answered that the
" rules and regulations " the Convention might prescribe
could only be those under which the previously legal and
qualified voters were to vote. They also asked, why there
was any need of submitting the Constitution to the people
at all, if the Convention had such absolute power under the
Convention Bill. They held, further, that the objection-
able provisions deprived certain citizens of their right to

** Art. xii, sees. 11-16.

90 The Maryland Constitution of 1864. [43(5

vote, and introduced a perfectly new class of voters hith-
erto unknown to the laws. The majority answer to this
last was that those citizens barred from voting had already
been practically disfranchised by laws of the National Gov-
ernment, and by decisions of the various courts, and that
the soldiers were not a new class of voters, but merely
citizens exercising their right of franchise under new con-
ditions. The entire debate was to a great extent along
these lines, and was sustained with exceptional brilliancy
by the minority members, Mr. Miller of Anne Arundel in
particular making a speech which showed great power of
logical thought and analytical reasoning. As usual, the
result was foreordained, and the provisions passed by the
usual party vote." " An attempt of the minority to insert
a provision providing for new elections in those districts in
which there might be military interference was promptly
voted down. no

From the entire absence at the time of the April elec-
tion, as far as we can see, of any such extreme views as
to the proper construction of the Convention.Bill, it is safe
to judge that the people of the state had no idea of the
extent to which these measures would finally be carried.
The majority members of the Convention, however, with
rare acuteness saw their opportunity, and were quick to
avail themselves of it. Their action, to say the least, was
clearly revolutionary, and its justification or condemna-
tion at the present day depends upon individual ideas as
to the legitimacy of such measures in time of war, and
whether, as seen in the final results, the end justified the
means. It only remains to add at this point, that the final
draft of the new Constitution was adopted by the Conven-
tion on September 6, by the party vote of 53 yeas to 26
nays, 17 members being absent and not voting. 211 After
the usual closing remarks by the President, the Conven-
tion adjourned.

*"For above see Proc., 602-4, 611-3, 670-81; Deb., iii, 1708-19,
1724-56, 1758-71. "' Proc., 672-3. au Proc., 770-1.

III.

In accordance with the eighth section of the twelfth ar-
ticle of the new Constitution, Governor Bradford on Sep-
tember 9, 1864, issued a proclamation calling an election
on October 12 and 13 for the purpose of ascertaining the
sense of the people in regard to the adoption or rejection
of the document. Copies of the Constitution were imme-
diately distributed throughout the state, and a fierce polit-
ical campaign was entered upon in regard to it. The radical
Union men very generally approved of the work of the
Convention, but many of the more conservative citizens,
including some of those who had hitherto supported the
Unconditional Union party, came out publicly in open op-
position and used their influence to prevent the adoption
of the Constitution. Hon. Reverdy Johnson is perhaps
the most striking instance of this latter class. He
strongly condemned the requirement of the test oath in
the vote on the Constitution, and declared that the Con-
vention in requiring it exceeded its powers by thus acting
in a legislative capacity. The Democrats of the state re-
ceived the Constitution with a storm of indignation, and
at once entered vigorously upon an attempt to defeat it
in the coming election. This movement was doubtless
precipitated by the action of the thirty-five minority mem-
bers of the Convention, who immediately after the ad-
journment of that body, and before they had returned to
their homes, drew up and- published 1 a unanimous pro-
test, addressed " To the Voters of Maryland," in which
they denounced the Convention and the new Constitution
in the strongest terms. After arguing that the period of
a civil war was not the time in which to make any or-

1 See " Sun," Sept. 10, 1864.

92 Tlie Maryland Constitution of 1864. [438

ganic changes in the Constitution or system of govern-
ment, and urging the " violent partisan measures " of the
majority members as proof of this, they proceeded to spe-
cifically condemn numerous provisions of the Constitu-
tion, in particular those providing for emancipation, for
paramount allegiance to the United States Government,
and also the various test oaths, the increase in the legis-
lative representation of Baltimore City, the soldiers' vote,
and the manner of submitting the document to the vote of
the people. They further said " Not only is this most
wanton violation of your rights aggravated by a contempt-
uous refusal to allow the least shadow of compensation,
but every possible means have been used to extend and
perpetuate the injury. The authors of these outrages,
apparently sensible that at some future day, a returning
sense of justice might succeed the mad fanaticism of the
hour, and reverse the iniquitous decrees they had pro-
nounced, have actually assumed the prerogative of judg-
ing for all time to come, for the future generations of the
people, and the future Legislatures of the state. The fiat
has gone forth that no future Legislature shall have power
to make compensation. The finances of the state may be
ample, the people of the state may desire to repair, to some
extent at least, this enormous injury, the Legislature may
unanimously respond to this sentiment, but no, the lu-
natics of 1864 have manacled their hands, they have no
constitutional power to do justice. Is the equal to such
enormity to be found in the history of any civilized region
of the world? We fearlessly answer, no! Other people
have manumitted negro slaves. Most of the states north
of us have manumitted negro slaves. Did any one of
these do this thing as the Convention has done it? Most
certainly not."

They closed by characterizing the Constitution as a
" wholesale robbery and destruction perpetrated by those
whose cardinal duty was to provide for the security of the
persons, the protection of the property and the preserva-

439] The Maryland Constitution of 1864. 93

tion of the inalienable rights of all the citizens of the
state/'

Certain citizens of Cecil County presented a memorial
to Governor Bradford objecting to the test oath and ap-
pealing to him to instruct the Judges of Election to disre-
gard it, and also to disregard it himself by announcing
that he would not count the votes of any county in which
the oath had been administered to voters. Governor
Bradford, on September 21, 1864, wrote a letter to Mr. D.
R. Magruder, the chairman of the committee which pre-
sented the above petition, and declined to take such action
as beyond his jurisdiction, maintaining that his duties were
merely ministerial. He also defended the action of the Con-
vention on the ground that the body had plenary powers,
and cited the Convention of 1850-1 as a precedent.

Mr. George Vickers, a prominent citizen of Chester-
town, wrote several letters to the Governor advocating
the same line of action on his part, and in reply Governor
Bradford again took a like stand as to limitation of his
powers. 1

The Democrats, who were now becoming better organ-
ized throughout Maryland, in their State Convention which
met in Baltimore on September 29, 1864, by a unanimous
vote passed resolutions offered by Mr. Clarke of Prince
George's in which the new Constitution was condemned,
and its defeat at the polls was urged. 8 Many political
meetings were held throughout the state by both parties,
and the various newspapers contained numerous articles
for and against the Constitution, many of them contribu-
ted by the foremost men of the state. On the other
hand, the following from the Centreville (Queen Anne's
County) Observer 4 may be taken as an instance of the atti-

1 This correspondence was made public during the first week of
October. See " American," October 5, 1864.
* " Sun " and " American " of September 30, 1864.
4 Quoted in " American," October 6, 1864.

94 The Maryland Constitution of 1864. [440

tude of the more extreme pro-slavery Democrats. In op-
posing the Constitution, this paper said " Would to God
we could picture sufficiently plain the importance of the
issue now pending in this state. We . . . leave the reader
to decide for himself whether he will perpetually rob his
neighbour of his happiness, or whether he will vote against
the inhuman, illegal and unjust instrument, and thereby
declare himself a friend to the oppressed. . . . Should this
infamous instrument be adopted, a perpetual line of demar-
cation will undoubtedly be drawn both in political, social
and business life. No man who entertains any regard for
his liberty, will, after the adoption of this Constitution, aid
in the support of those who vote for it, and for his oppres-
sion."

But the Union party was none the less active in its sup-
port of the new Constitution, and the state was vigorously
canvassed by Montgomery Blair, Thomas Swann, Henry
Winter Davis, William T. Purnell, Archibald Stirling, Jr.,
Henry Stockbridge, John V. L. Findlay, and other promi-
nent men of that party.

The arguments advanced by both sides in this campaign
were largely a repetition of those brought forward by the
Union and Democratic members of the Convention in
their discussion of the provisions in regard to submitting
the Constitution to the people."

Throughout the entire movement leading to the Consti-
tution, President Lincoln had been a close and interested
observer, and had given it his constant personal encour-
agement." Being requested to aid in this final contest, on
October 10 he wrote a letter to Henry W. Hoffman, 1
which was read that evening at a Union mass-meeting in
Baltimore. In this letter he stated that he would be
" gratified exceedingly if the good people of the state
[would], by their votes, ratify the new Constitution."

5 See pages 89-00.

8 Nicolay and Hay, " Life of Lincoln," viii, 465. 7 Ibid., p, 467.

441] The Maryland Constitution of 1864. 95

The election took place as ordered, on October 12-13.
There seems to have been little or no disorder or military
interference at the polls, although it was charged that in
some districts gross frauds were perpetrated. 8 These
could hardly have been very extensive on either side, as
recourse would undoubtedly have been had to the courts
in the same manner as was done in the case of the sol-
diers' vote. The result of the regular state vote showed
that the Constitution had been defeated by an adverse ma-
jority of 1995." Of course everything now depended on
the result of the soldiers' vote, the returns of which were
slowly coming in. The opponents of the Constitution now
attempted to throw out this latter vote, and thus insure
the final defeat of the document. On October 24, 1864,
an application was made to the Superior Court of Balti-
more City (Judge Robert N. Martin) on behalf of Samuel
G. Miles for a mandamus directed to Governor Bradford,
commanding him to exclude all votes cast at any place
outside of the state of Maryland from the count upon the
question of the adoption of the Constitution. The peti-
tioner stated that he was a qualified voter of Maryland
according to the existing Constitution, but had been un-
lawfully excluded from voting by the Judges of Election
because he refused to take the oath illegally prescribed ac-
cording to the new Constitution. He further averred that
the soldiers had not been subjected to the oath according
to the requirements of the new Constitution, and hence
their votes should not be counted if the above action of
the Judges of Election was sustained. Also by this same
document the petitioner stated that he would be unlawfully
deprived of his property in slaves without any compensa-
tion therefor. The court dismissed the petition on the

8 "Sun," Oct. 13; Frederick "Examiner," Oct. 19; Denton
"Journal" (quoted in "Sun" of Oct. 24); "American," Oct. 29.
See also Scharf, " History of Maryland," iii, 596.

9 See appendix for detailed vote.

96 The Maryland Constitution of 1864. [442

same day, on the ground that no sufficient reason was
given for its interposition. From this decision an appeal
was at once taken to the Court of Appeals. Prior to this,
the same petition had been presented to the Circuit Court
of Anne Arundel county (Judge William H. Tuck), had
been likewise dismissed and an appeal taken. Further,
pending these proceedings still another petition, in behalf
of E. F. Chambers and others, was presented to the Cir-
cuit Court of Baltimore County (Judge John H. Price) and
also to the same Anne Arundel Court, praying for an in-
junction to restrain the Governor from counting the sol-
diers' vote. It was dismissed by both courts and likewise
appealed.

This made four appeals, and hearing on them was be-
gun in the Court of Appeals on October 27, 1864. After
disposing of some technicalities as to the eligibility of cer-
tain Judges to sit in the trial of these cases on account of
their owning slaves, the case was argued by I. Nevitt
Steele, William Schley " and T. S. Alexander on behalf of
the appellants, and by Henry Stockbridge and Henry Win-
ter Davis for the other side. On October 29, 1864, the
court, through Hon. Richard J. Bowie, the Chief Justice,
gave its decision unanimously sustaining Judge Martin in
his order dismissing the first case."

While these proceedings were in progress, application
was made to Governor Bradford for permission to can-
vass the returns of the soldiers' vote made to him, of which
he was sole judge, and to show cause why certain of these
votes should be rejected and not counted. The Governor
consented, and the votes and returns were canvassed in
detail, William Schley arguing the question against ad-
mitting them, and Archibald Stirling, Jr., and Alexander

10 Not the member of the Convention. The latter was Frederick
Schley, of Frederick county.

u Deb., iii, 1915-9; 22 Md. Reports, 170, Miles vs. Bradford.
Also see contemporary newspapers.

443] The Maryland Constitution of 1864. 97

Randall in their favor. Governor Bradford gave his de-
cision on the numerous questions raised as to their
legality, in a lengthy opinion, dated October 28, 1864, and
published simultaneously with his proclamation declaring
the final result of the total vote on the Constitution. The
objections raised by Mr. Schley were mainly on the ground
of technicalities, as to requiring the oath of the soldiers
who voted, as to the paper on which the ballots were
printed, as to counting the votes of certain companies not
attached to any regiment, etc.

Out of the total of 3186 votes cast by the soldiers, 285
votes " for," and 5 " against " the Constitution were re-
jected, and 2633 votes " for " and 263 " against " it were ac-
cepted. Adding these latter numbers to the vote of the
state, it made a total of 30,174 for the Constitution, and
29,799 against it, leaving the small majority of 375 in its
favor, an exceedingly close result in a total vote of nearly
60,000. On October 29, 1864, Governor Bradford issued
his proclamation declaring the new Constitution adopted,
and causing it to go into effect on November I, 1864.

It should be observed that the overwhelming prepon-
derance of the favorable vote on the part of the soldiers
does not necessarily presuppose fraud or unfairness on
the part of either the civil or military authorities. Men
thrown together in the camp, or standing side by side on
the field of battle would naturally be largely of one mind
on political matters. This was seen in the case of the
votes of the soldiers of various other states at this period.
Also, men who were offering their lives in defense of their
principles would not be apt, from motives of legal expe-
diency, to hesitate in regard to measures considered as
calculated to advance their cause."

We thus come to the end of the movement which

12 The War Department issued at Washington on Oct. i, 1864,
" General Order, No. 263," intended to insure, as far as possible,
freedom and fairness in the vote of the soldiers of the various
states.
30

98 The Maryland Constitution of 1864. [444

occupied the thought of the people of the state during
nearly two years preceding the close of the war. It was
largely the result of a long-existent feeling of the need of
reform in the social and political life of Maryland, and
although precipitated and somewhat changed in character
by the influence of the Civil War, would undoubtedly have
been successful at some later day. In this latter case it
would likely have been less extreme, yet perhaps more
thorough, in its results, and hardly would have suffered
the effects of the inevitable reaction which in the year
1867 not only abrogated the objectionable features of the
Constitution of 1864, but rejected some of its greatest
merits as well. But the fact that these merits and defects
once existed in the organic law and government of the
state, will not be forgotten by the more thoughtful people
of Maryland, but will serve as a valuable experience to
guide them in many hitherto untried paths of reform.
Furthermore, if the justification of a higher national ne-
cessity is denied the Union men of 1863-4, their courage
shown in the abolition of slavery in the state of Maryland
deserves the thanks and appreciation of their posterity.

APPENDIX

Vote on the Constitution, October 12-13, 1864:

For yAgainst

Allegany county 1,839 964

Anne Arundel county 281 1,360

Baltimore city 9,779 2,053

Baltimore county 2,001 1,869

Carroll county 1,587 1,690

Caroline county 471 423

Calvert county 57 634

Cecil county 1,611 1,611

Charles county 13 978

Dorchester county 449 1,486

Frederick county 2,908 1,916

Harford county 1,083 1,671

Howard county 462 583

Kent county 289 1,246

Montgomery county 422 1,367

Prince George's county 149 1,293

Queen Anne's county 220 1,577

Somerset county 464 2,066

St. Mary's county 99 1,078

Talbot county 430 1,020

Washington county 2,441 985

Worcester county 486 1,666

27,541 29,536

Soldiers' vote 2,633 263

30,174 29,799
29,799

Majority 375

UNIVEF

GENERAL LIBRARY - U.C. BERKELEY

BDOOEfiM7flM